Georgia Malone & Co. v. Rieder , 19 N.Y.3d 511 ( 2012 )

OPINION OF THE COURT

Graffeo, J.

In this action, a real estate company that prepared due diligence reports for a developer in connection with the potential purchase of commercial properties alleges that a rival brokerage firm was unjustly enriched when it acquired the materials from the developer and later obtained a commission on the ultimate sale of the properties. The issue before us is whether a sufficient relationship existed between the two real estate firms to provide a basis for an unjust enrichment cause of action. Based on the allegations presented in the complaint, we hold that the relationship between these two parties was too attenuated.

Plaintiff Georgia Malone & Company, Inc. (Malone) is a licensed real estate brokerage and consulting firm that provides its clients with information regarding the purchase and sale of properties not yet on the market. Its principal officer is Georgia Malone. Defendant Rosewood Realty Group, Inc. (Rosewood) and defendant Aaron Jungreis, a broker in the firm, are also engaged in the real estate trade.

In the course of its realty business, Malone introduced defendant CenterRock Realty, LLC (CenterRock), a developer, to the sellers of residential apartment buildings in midtown Manhattan. Thereafter, Malone and CenterRock, by its managing member, defendant Ralph Rieder, entered into a contract in which Malone agreed to produce due diligence materials relating to the properties for CenterRock’s review for potential acquisition. CenterRock acknowledged that it would keep the due diligence information confidential and agreed to pay Malone a commission of 1.25% of the total purchase price for its brokerage services.¹

Malone then provided CenterRock with certain documents, including an underwriting model, purchase contract, certificates of occupancy, income summary, short aging summary, bank accounts and bank deposit reports, rent rolls, reports of environmental and engineering investigations and recommendations for the selection of consultants. In December 2007, CenterRock executed a contract of sale with the owners to purchase the properties for $70 million.

Under the terms of the purchase agreement, CenterRock had 25 days to perform due diligence investigations, during which time it could terminate the deal without a penalty. According to Malone, Rieder delayed tender of the down payment and the sellers agreed to extend the due diligence deadline an additional 21 days. During the due diligence period, Malone claims that it continued to collect, create and provide CenterRock with confidential information pertaining to the properties and that Rieder repeatedly represented that CenterRock would be ready to close on time.

About a week before the expiration of the contract extension, Georgia Malone received an e-mail from Rieder that stated: “See what you can do about finding [another] buyer for [the properties]. If it falls flat I am prepared to do whatever you think is fair including making up your entire fee. Ideally, I would like to tack it on to our next deal.” Malone attempted but failed to locate another buyer.² CenterRock terminated the contract on the last day of the due diligence period and refused to pay Malone’s demand for its commission in the amount of $875,000 (1.25% of the contract price).

After CenterRock pulled out of the deal, Malone alleges that Elie Rieder gave the due diligence materials to a third party for the purpose of selling the documentation to Rosewood. In return, Rosewood paid the Rieders $150,000 for the materials and obtained a new buyer who eventually purchased the properties for $68.5 million. Rosewood received a commission of $500,000 from the sale.

Following that transaction, Malone commenced this action alleging a breach of contract against CenterRock and Ralph Rieder and interposing unjust enrichment claims against all defendants. Supreme Court dismissed all claims except those against CenterRock. On Malone’s appeal, the Appellate Division modified, with two Justices dissenting, by reinstating the unjust enrichment claims against the Rieders and otherwise affirmed (86 AD3d 406 [2011]). The Appellate Division granted Malone’s motion for leave to appeal and certified the following question: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” (2011 NY Slip Op 85308[U] [2011]).

On appeal, Malone seeks reinstatement of its unjust enrichment claim against Rosewood. Malone contends that Rosewood knew that it produced the due diligence materials and that, as a consequence, Rosewood unfairly profited at Malone’s expense by collecting a commission on the sale of the properties. In opposition, Rosewood argues that Malone’s complaint fails to make out an unjust enrichment claim against it because there was no business relationship or connection between them. In addition, Rosewood submits that Malone’s complaint is inadequate because it does not assert that Rosewood was aware that the information had been deemed confidential, nor does it allege that Rosewood knew that CenterRock had not paid Malone for production of the due diligence documents.

As we have stated on several occasions, “ ‘[t]he theory of unjust enrichment lies as a quasi-contract claim’ ” and contemplates “an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009], quoting Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). An unjust enrichment claim is rooted in “the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another” (Miller v Schloss, 218 NY 400, 407 [1916]). Thus, in order to adequately plead such a claim, the plaintiff must allege “that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,182 [2011] [brackets and internal quotation marks omitted]).

In Sperry v Crompton Corp. (8 NY3d 204 [2007]), we held that a plaintiff cannot succeed on an unjust enrichment claim unless it has a sufficiently close relationship with the other party. In that case, the plaintiff, who claimed to have purchased overpriced tires, asserted a cause of action for unjust enrichment against the producers of the chemicals used by tire manufacturers (id. at 209). The plaintiffs theory was that the chemical producers overcharged the tire manufacturers, who, in turn, passed the cost to the plaintiff and others similarly situated (id.). Defendants moved under CPLR 3211 to dismiss the claim for failure to state a cause of action and we held that, while “a plaintiff need not be in privity with the defendant to state a claim for unjust enrichment,” there must exist a relationship or connection between the parties that is not “too attenuated” (id. at 215-216).

More recently, we elaborated on the pleading requirements for unjust enrichment in Mandarin, wherein the plaintiff sought to purchase a famous painting with the intent to later auction it for a profit (16 NY3d at 177). The defendant, an alleged art expert, wrote a letter to a third party estimating the painting’s value at $15 million to $17 million but the letter did not disclose the defendant’s ownership interest in the artwork (id.). After obtaining a copy of the letter, the plaintiff claimed to have relied on defendant’s representations on valuation in ultimately purchasing the painting for $11.3 million (id.). Unbeknownst to the plaintiff, $8.8 million of the sale proceeds went to defendant (id.). When the plaintiff was unable to resell the painting for a price greater than or equal to its acquisition cost, it sued the defendant for unjust enrichment.

Upon defendant’s motion to dismiss, we dismissed the unjust enrichment claim due to “the lack of allegations [in the complaint] that would indicate a relationship between the parties, or at least an awareness by [the defendant] of [the plaintiffs] existence” (Mandarin, 16 NY3d at 182). Reaffirming Sperry, we held that although the plaintiff was not required to allege privity, it had to assert a connection between the parties that was not too attenuated (id.). We concluded that

“under the facts alleged, there are no indicia of an enrichment that was unjust where the pleadings failed to indicate a relationship between the parties that could have caused reliance or inducement. Without further allegations, the mere existence of a letter that happens to find a path to a prospective purchaser does not render this transaction one of equitable injustice requiring a remedy to balance a wrong. Without sufficient facts, conclusory allegations that fail to establish that a defendant was unjustly enriched at the expense of a plaintiff warrant dismissal” (id. at 182-183).

Seizing on Mandarin’s reference to “awareness,” Malone argues that its unjust enrichment claim should be allowed to proceed because Rosewood was aware that Malone had created the due diligence reports and Rosewood had used the materials for its own benefit without compensating Malone. But mere knowledge that another entity created the documents is insufficient to support a claim for unjust enrichment under the facts of this case. Our mention of awareness in Mandarin was intended to underscore the complete lack of a relationship between the parties in that case.³

Similar to Sperry and Mandarin, the relationship between Malone and Rosewood is too attenuated because they simply had no dealings with each other. Accepting as true the facts alleged in the complaint and affording Malone the benefit of every favorable inference, as we must on a motion to dismiss (see Roni LLC v Arfa, 18 NY3d 846, 848 [2011]), the complaint does not contain sufficient allegations to support an unjust enrichment claim against Rosewood. In particular, the complaint does not assert that Rosewood and Malone had any contact regarding the purchase transaction.⁴ And, although the complaint states that Rosewood “knew at all times!’ that Malone produced the due diligence reports and provided them to CenterRock with the expectation that it would be compensated in the event a purchase agreement was reached, there is no allegation that Rosewood was aware that Malone and CenterRock had agreed to the confidential nature of the due diligence information or that Rosewood knew that CenterRock had failed to pay Malone before the documents were conveyed to Rosewood. Indeed, Jungreis’s e-mail communications submitted by Malone in opposition to the motions to dismiss allude to Rosewood’s offer to pay the Rieders for the “due diligence costs” they “laid out,” suggesting that Rosewood believed that the Rieders had compensated Malone for its services.

Contrary to Malone’s contentions, there is no claim that Rosewood had anything other than arm’s length business interactions with CenterRock or the Rieders. The pleadings do not implicate Rosewood in the Rieders’ alleged wrongdoing. The Rieders furnished the due diligence documents and, in exchange, Rosewood paid them $150,000. Rosewood obtained a buyer and negotiated the purchase transaction with the sellers and their broker. Hence, Malone’s argument that Rosewood profited without doing any work lacks merit.

The dissent cites Simonds v Simonds (45 NY2d 233 [1978]), a case that involved an unjust enrichment action against the second wife of the plaintiffs ex-husband. Plaintiff sought a portion of her ex-husband’s life insurance proceeds obtained by the second wife. We imposed a constructive trust on the insurance proceeds held by the second wife on the basis that “[a] bona fide purchaser of property upon which a constructive trust would otherwise be imposed takes free of the constructive trust, but a gratuitous donee, however innocent, does not” (id. at 242). We determined that the second wife in Simonds was a gratuitous donee. In contrast, here, Malone has alleged that Rosewood paid the Rieders for the due diligence files. Additionally, because the complaint fails to allege that Rosewood was aware of the wrongfulness of Center Rock’s actions, Rosewood appears to fit the criteria of a good-faith purchaser for value which, under Simonds, would not support an unjust enrichment claim.

Moreover, regardless of whether Rosewood was a good-faith purchaser of the due diligence materials, the complaint fails to present a sufficient connection between Malone and Rosewood to form the basis of an unjust enrichment claim. In this respect, Malone’s and the dissent’s reliance on Bradkin v Leverton (26 NY2d 192 [1970]) is misplaced because the defendant in that case was an officer of the corporation with which the plaintiff contracted and thus his relationship with the plaintiff was much closer.

The rule urged by Malone would require parties to probe the underlying relationships between the businesses with whom they contract and other entities tangentially involved but with whom they have no direct connection. This would impose a burdensome obligation in commercial transactions. Although Malone’s alleged loss of compensation for preparation of the due diligence reports certainly appears unfair, its unjust enrichment claim against Rosewood falls short of stating facts establishing a sufficient relationship to impose potential liability against that party. Such claims may be more properly pursued against CenterRock and the Rieders and, since those claims remain pending, Malone is not without recourse.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

1 . Specifically, the agreement provided that CenterRock “agrees to treat all [information [furnished to it by Malone] as confidential and shall not duplicate, distribute, disclose, or disseminate such documentation or information without the prior written consent of [Malone], in each instance, which [Malone] may withhold in its sole discretion.” The contract further stated that CenterRock could, on a confidential basis, “reveal the [(Information only to its affiliates, representatives, key employees, lenders, partners, advisors, outside counsel and accountants (‘Related Parties’) . . . who (x) need to know the [(Information for the purpose of evaluating the [p]ropert[ies], and (y) are informed by [CenterRock] of the confidential nature of the [(Information.” CenterRock also agreed to be held liable for the breach of the confidentiality clause by any of the Related Parties.

2 . While these events were transpiring, Malone alleges that Rieder and defendant Elie Rieder (Rieder’s son and an officer of CenterRock) were secretly attempting to obtain equity partners in order to purchase the properties through another entity to avoid paying Malone its commission.

3 . Contrary to the dissent’s contention, the “awareness” language in Mandarin was dicta since the thrust of the holding pertained to the attenuation of the relationship between the parties.

4 . Malone conceded at oral argument that it had no relationship with Rosewood.