Practice point: The plaintiff must show that (1) the other party was
enriched, (2) at the plaintiff'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.
Student note: On a motion to dismiss pursuant to CPLR 3211(a)(7), for
failure to state a cause of action, the court must afford the pleading a
liberal construction, accept as true all facts as alleged in the pleading, give the plaintiff the benefit of every possible inference, and
determine only whether the facts as alleged fit within any cognizable
legal theory. Whether the complaint will later survive a motion for
summary judgment, or whether the plaintiff will ultimately be able to
prove its claims, is not considered in deciding the prediscovery motion.
Case: Alan B. Greenfield, M.D. v. Beach Imaging Holdings, LLC, NY Slip Op 01285 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: Deed restrictions that run with the land.
