Grapevine Trading Company, Appellant, v. Milberg Factors, Inc., Respondent, et al., Defendant

Grapevine Trading Company, Appellant, v Milberg Factors, Inc., Respondent, et al., Defendant. [720 NYS2d 346] [MAJORITY] —Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered October 12, 1999, which awarded summary judgment to defendant Milberg Factors, Inc. and dismissed the second cause of action, unanimously reversed, on the law, with costs, and the second cause of action reinstated. The motion court erred in granting Milberg pre-discovery dismissal of the unjust enrichment cause of action. Plaintiff, which bought goods from defendant Atlantic Wholesale, paid Atlantic’s factor, Milberg, directly and did not receive the goods. In opposition to the motion, plaintiff presented significant evidence that the factor was aware, at the time of the transaction, of Atlantic’s alleged practice of creating fraudulent accounts receivable (cf., Iselin-Jefferson Fin. Co. v Makel Textiles, 21 AD2d 758 [defendant vendee’s counterclaims against plaintiff factor dismissed where no inference could be drawn re factor’s awareness of vendor’s deficient performance]; see also, Merrill Lynch, Pierce, Fenner & Smith v Chipetine, 221 AD2d 284, 286-287). Concur — Williams, J. P., Andrias, Lerner, Saxe and Buckley, JJ.