Majority
p. 426Douglas Schultz et al., Appellants, v Laurence Gershman et al., Respondents, et al., Defendant. [891 NYS2d 323]
The court should not have considered the Bloomberg Finance L.E report demonstrating the trading history of the subject stock, since it was improperly raised for the first time in Gershman’s reply (see McNair v Lee, 24 AD3d 159 [2005]). In
p. 427
any event, the report does not conclusively establish a defense to plaintiffs’ allegations (see Leon v Martinez, 84 NY2d 83 , 88 [1994]). While it demonstrates that the stock was trading in December 2006, it does not conclusively establish that a “liquid, public market” for the shares had developed as that term was defined in the parties’ agreements.
Plaintiffs’ unjust enrichment cause of action is barred by the existence of the contract between the parties (see Goldstein v CIBC World Mkts. Corp., 6 AD3d 295 , 296 [2004]). Concur— Gonzalez, EJ., Tom, Andrias, Nardelli and Richter, JJ.
Cases cited
- Leon v. Martinez 84 NY2d 83 at 88 p. 427
- Goldstein v. CIBC World Markets Corp. 6 AD3d 295 at 296 p. 427