United States District Court, Southern District of New York
April 8, 1991
THE STATE OF NEW YORK AND THE TOWN OF TUSTEN, PLAINTIFFS,
SCA SERVICES, INC., JOHN CORTESE CONSTRUCTION CORPORATION, JOHN CORTESE, AND SHELDON WERNICK, DEFENDANTS. SCA SERVICES, INC., JOHN CORTESE CONSTRUCTION CORPORATION, JOHN CORTESE, AND SHELDON WERNICK, THIRD-PARTY PLAINTIFFS, V. ROBERTS & CARLSON, INC., CONTINENTAL CAN COMPANY, INC., BASF CORPORATION (INMONT DIVISION), KAY-FRIES INC., NATIONAL STARCH AND CHEMICAL CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., AND JOHN DOES 1-99, THIRD-PARTY DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
In an opinion and order dated January 9, 1991 the Court
denied plaintiff Town of Tusten's ("the Town") motion for
judgment on the pleadings dismissing certain counterclaims
interposed by defendant SCA Services, Inc. ("SCA"). 754 F. Supp. 995.
The Court ordered additional briefing relating to the
Town's motion for judgment on counterclaims three and four.
This opinion addresses those claims.
SCA argues that counterclaim 3 brought by SCA against the
Town is based on unjust enrichment whereas counterclaim 7 is
based on restitution. The caselaw cited by plaintiffs indicates
that restitution is the remedy for unjust enrichment, not a
separate basis for liability. See Hutton v. Klabal, 726 F. Supp. 67,
72 (S.D.N.Y. 1989) (citing Morse-Diesel, Inc. v. Trinity
Indus., Inc., 655 F. Supp. 346, 353 (S.D.N.Y. 1987)). In other
words, a plaintiff who establishes a prima facie case of unjust
enrichment is entitled to the equitable remedy of restitution.
See Spallina v. Giannoccaro, 98 A.D.2d 103, 469 N.Y.S.2d 824,
826 (App. Div. 1983). See also Paramount Film Distrib. Corp. v.
State, 30 N.Y.2d 415, 421, 285 N.E.2d 695, 334 N.Y.S.2d 388
(1972) ("The essential inquiry in any action for unjust
enrichment or restitution is whether it is against equity and
good conscience to permit the defendant to retain what is
sought to be recovered"), remittitur amended, 31 N.Y.2d 678,
288 N.E.2d 811, 336 N.Y.S.2d 911 (1972), reh'g denied, 31
N Y2d 709, 289 N.E.2d 569, 337 N.Y.S.2d 1029 (1972).
Accordingly, the Court strikes SCA's third counterclaim against
the Town sua sponte pursuant to Rule 12(c).
This reasoning also requires that counterclaim 4 be stricken.
that counterclaims 4 and 6 are distinct because counterclaim 4
is based on common law negligence whereas counterclaim 6 is
based on restitution. Both counterclaims seek indemnification
and/or contribution. However, no case cited by SCA applies
restitution as an independent cause of action as opposed to a
type of remedy. SCA offers no authority upholding "a claim for
contribution . . . based on restitution." Def. Reply Mem. filed
Mar. 4, 1991 at 6. Accordingly, SCA's fourth counterclaim is
stricken pursuant to Rule 12(c).*fn1
IT IS SO ORDERED.