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JERUSALEM AVENUE TAXPAYER, LLC v. LIBERTY MUTUAL INSURANCE COMPANY

9895, 159842/13.

175 A.D.3d 1178 (2019)

106 N.Y.S.3d 865

2019 NY Slip Op 06691

Jerusalem Avenue Taxpayer, LLC, Respondent, et al., Plaintiff, v. Liberty Mutual Insurance Company, Appellant, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided September 24, 2019.

Attorney(s) appearing for the Case

Jaffe & Asher, LLP, New York ( Marshall T. Potashner of counsel), for appellant.

Kennedys CMK, LLP, New York ( Max W. Gershweir of counsel), for respondent.

Concur—Acosta, P.J., Manzanet-Daniels, Mazzarelli, Webber, Moulton, JJ.

The motion court providently exercised its discretion in denying defendant's request for the equitable remedy of restitution (see generally Gaisi v Gaisi, 108 A.D.3d 687 [2d Dept 2013]; Restatement [Third] of Restitution and Unjust Enrichment § 1, Comment a). Even assuming plaintiff was not insured under the insurance policy issued by defendant, it was plaintiff's insurer that received the benefit of defendant's contribution...

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