Quedan Constr. Servs., Inc. v Weinman Bros., Inc.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 26, 2013 Gonzalez, J.P., Sweeny, Renwick, Manzanet-Daniels, Roman, JJ.
Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered April 19, 2012, dismissing the complaint, unanimously affirmed, without costs.
Plaintiff failed to preserve its claim that the trial court prematurely dismissed its unjust enrichment claim. In any event, the dismissal before trial was appropriate, since plaintiff was required, at trial, to make an election between its alternative theories of recovery " at a time within the discretion of the Trial Judge'" (see Wilmoth v Sander, 259 AD2d 252, 254 [1st Dept 1999]). Plaintiff failed to prove a prima facie case on its breach of contract cause of action, since it did not adduce evidence of the value of the work it had performed above the $290,000 it had already been paid.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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