Claims for unjust enrichment generally will be dismissed in New York if a valid and enforceable contract governs the subject matter of the claim.1 A more difficult question arises, however, when the contract underlying a transaction is found to be unenforceable. In the past, New York state and federal courts have allowed unjust enrichment claims to proceed where the underlying contract that otherwise would cover the subject matter of the claim is found to be unenforceable.2 Recent decisions by the First Department and Commercial Division appear to have deviated from this decade-old approach.3
This column addresses those recent Commercial Division decisions that have followed the First Department’s shift toward dismissing unjust enrichment claims even where a contract governing the transaction is unenforceable. Also addressed below are recent Commercial Division cases discussing the permissibility of alternative pleading of unjust enrichment and breach of contract claims arising from the same transaction.4
New York Precedent
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