888 Construction, Inc. v. City of Troy , 371 N.Y.S.2d 121 ( 1975 )

Edward S. Conway, J.

This is a motion by the defendant for an order dismissing the complaint pursuant to CPLR 3211 (subd [a]) upon the grounds that the complaint does not state a cause of action against the defendant.

The action on which the instant motion is predicated is for an alleged unjust enrichment in the sum of $3,500.10 which is the amount of the fee charged by the defendant City of Troy for a building permit issued to plaintiff for permission to construct garden apartments in the City of Troy.

The complaint alleges that a certain corporation, Troy Heights Development Corp., the owner of certain lands in the City of Troy, New York, entered into a contract with the plaintiff whereby plaintiff agreed to construct a 270-unit garden apartment building on the premises. Further, the complaint alleges that on October 4, 1973 defendant issued a building permit for which plaintiff paid a fee of $3,500.10 and that subsequently Troy Heights Development Corp. breached the contract and without cause dismissed the plaintiff from the project. That on November 5, 1974, defendant issued a new building permit to the Troy Heights Development Corp. with respect to the same project, and that plaintiff duly made a written demand for the return of the fee of $3,500.10 and defendant refused to return same.

The movant contends that the fee was paid pursuant to the provisions of section 10-23 of the Code of Ordinances of the City of Troy; that there is no provision in the code for a refund and in the absence of statutory authority the money may not now be repaid to the plaintiff; and that no facts are alleged in the complaint to support a theory of unjust enrichment.

This court must agree with these contentions of the defendant.

The motion to dismiss the complaint is granted.