Michael H. Spector, A.I.A., P.C. v Billy Smith's Sport Ctr., Inc.
Annotate this CaseDecided on November 30, 2005
Supreme Court, Nassau County
Michael H. Spector, A.I.A., P.C., d/b/a The Spector Group, Plaintiff,
against
Billy Smith's Sport Center, Inc., Mark Zion, Abraham Zion and Contrarion, L.P., Defendants.
8348-04
Counsel for Plaintiff
L'Abbate, Balkan, Colavita & Contini, LLP
1050 Franklin Avenue
Garden City, New York 11530
Counsel for Defendants
Steven Cohn, P.C.
One Old Country Road - Suite 497
Carle Place, New York 11514
Leonard B. Austin, J.
Defendants, Mark Zion, Abraham Zion and Contrarion L.P. move for summary judgment dismissing the complaint. Defendant Billy Smith Sports Center, Inc. moves for summary judgment dismissing the breach of contract and account stated causes of action.
BACKGROUND
In 2003, Defendant Billy Smith's Sports Center, Inc. ("Billy Smith's") was considering the development of a sports center in Plainview.
Plaintiff, Michael A. Spector AIA, P.C. d/b/a The Spector Group ("Spector") is an architectural firm. Spector asserts that, in 2003, it was contacted by Defendants Mark Zion ("Mark") and Abraham Zion ("Abraham"), who requested that Spector prepare a proposal and architectural drawings for the development of the Smith sports center.
Mark is the president of Billy Smith's. Abraham is the general partner of Defendant Contrarion, L.P. ("Contrarion").
Michael Spector ("Michael"), Spector's principal, avers that he prepared certain drawings and other materials in connection with the proposed sports center and attended numerous meetings with Mark and Abraham regarding its development. The Smith sports center never was constructed. The project never got past the discussion stage.
When the Defendants did not pay for the services rendered, Spector commenced this action seeking to recover the amount allegedly due for these services.
The complaint alleges four causes of action against all Defendants, breach of contract, unjust enrichment, quantum meruit and account stated.
Mark, Abraham and Contrarion move for summary judgment dismissing the complaint against them in its entirety. Billy Smith's moves to dismiss the breach of contract and account stated causes of action.
All of the Defendants move to dismiss the breach of contract cause of action on the grounds that they did not have a contract with Spector regarding the services rendered.
Mark moves to dismiss the complaint against him in its entirety on the grounds that any services rendered by Spector were rendered to Billy Smith's and that he is not personally responsible for the obligations of Billy Smith's.
Abraham and Contrarion move to dismiss on the grounds that they did not have any involvement with Billy Smith's, the project or the transaction.
Michael avers that he was contacted by Mark and Abraham who requested that Spector submit a proposal to provide professional services in connection with development of the Smith sports center. Michael claims that Mark, Abraham their attorney and he met four times between May 21, 2003 and June 26, 2003 to discuss funding, finance, design and zoning issues involved in the project. [*2]
In May 2003, Spector sent to Mark and Lawrence Israeloff ("Israeloff") a "Proposal for Professional Services ("Proposal") that outlined the scope of the project, the parties who would be involved in the project, the services to be provided, the costs
to be incurred for those services and a payment schedule. Mark and Lawrence never executed the Proposal.[FN1]
On July 23, 2003, Spector sent an invoice to Mark and Abraham at Mark's business address. The invoice was for the retainer amount.
Michael states that Mark acknowledged receipt of the bill and requested that in the future, all bills be sent to Billy Smith's care of Mark so that the bills would not get lost or confused with those of his other business.
Spector claims that, after he sent the initial invoice, Mark and Abraham advised him that they were arranging financing for the project and the initial retainer fee would be paid as soon as financing was secured.
Michael claims that the size and scope of the project changed requiring Spector to prepare additional drawings and plans. Michael also attended additional meetings with Mark, Abraham and others in connection with the project. Spector billed Mark, Abraham and Smith for his time and the services rendered.
Michael asserts that Abraham advised him that he was a general partner in Contrarion Michael and Contrarion was involved in the project.
Michael further alleges his proposal was accepted by Mark and Abraham personally.
DISCUSSION
A. Summary Judgment - Standard
Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established that there are no triable issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 329 (1986); and Andre v. Pomeroy, 35 NY2d 361 (1974).
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., supra.; and Zuckerman v. City of New York, 49 NY2d 557 (1980).
Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to establish through proof in evidentiary form that triable issues of fact exist or that the party has an acceptable excuse for its failure to do so. Zuckerman v. City of New York, supra; Davenport v. County of Nassau, 279 AD2d 497 (2nd Dept. 2001); and Bras v. Atlas Construction Corp., 166 AD2d 401 (2nd Dept. 1991).
The court's function is issue finding, not issue determination. Matter of Suffolk County Dept. Of Social Services v. James M., 83 NY2d 178 (1994); and Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). [*3]
When deciding a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every inference which can be drawn from the evidence. Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985); Schuhmann v. McBride, -A.D.3d-, 2005 WL 3116323 (2nd Dept. 2005); and Louniakov v. M.R.O.D. Realty Corp., 282 AD2d 657 (2nd Dept. 2001).
If the court has any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied. Freese v. Schwartz, 203 AD2d 513 (2nd Dept. 1994); and Groger v. Morrison Knudsen Co., Inc., 184 AD2d 620 (2nd Dept. 1992).
B. Breach of Contract
A plaintiff establishes a breach of contract action by demonstrating the existence of a contract between the parties, performance by the plaintiff, breach by the defendant and damages resulting from the breach. Furia v. Furia, 116 AD2d 694, (2nd Dept. 1986). Defendants assert that the parties never entered into a contract because Mark and Abraham never signed the Proposal individually or on behalf of either Billy Smith's or Contrarion.
Mutual assent to all of the material terms of an agreement is an essential element of a contract. Express Industries and Terminal Corp. v. New York State Dept. of Transportation, 93 NY2d 584 (1999); and Gomez v. Bicknell, 302 AD2d 107 (2nd Dept. 2002). The terms of the agreement to which the parties assented must "...be sufficiently specific so that what was promised can be ascertained." Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher, 52 NY2d 105 (1980).
Assent to the terms of an agreement may be evidenced by word, act or conduct. Maffea v. Ippolitio, 247 AD2d 366 (2nd Dept. 1998). If the parties acted under the terms of the agreement, the agreement may be enforceable even though one party did not sign the agreement. See, God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP., 10 AD3d 671 (2nd Dept. 2004).
At this stage in the litigation, Spector has made a sufficient showing to establish questions of fact as to whether there was an agreement between the parties and who were parties to the agreement. There has been no discovery in this action as of yet. Spector avers that it performed and the Defendants accepted the services Spector performed in accordance with the terms of the Proposal. Michael avers that he prepared the initial drawing required by the contract and met with Mark and Abraham on issues involving the proposed sports center approximately fifteen (15) times. Michael asserts that as the project changed he prepared several drawings at the request of Defendants incorporating the changes. Defendants' receipt of the drawing coupled with Michael's participation in the numerous meetings regarding the project could indicate assent by conduct.
These issues of fact and the inferences which may be drawn from these facts clearly establish the existence of triable issues regarding the breach of contract claim. Since issues of fact exist, summary judgment must be denied. See, Sodexho Management, Inc. v. Nassau Health Care Corp., -A.D.3d- , 2005 WL 3004409 (2nd Dept. 2005).
C. Unjust Enrichment
Unjust enrichment is a remedy in quasi-contract. A party may not obtain recovery for unjust enrichment unless the written agreement between the parties "...has been rescinded, is unenforceable or abrogated." Waldman v. Englishtown Sportswear, Ltd., 92 AD2d 833, 836 (1st Dept. 1983).
A claim for unjust enrichment is established by proving that plaintiff performed services [*4]for the defendant resulting in the defendant receiving an unfair or unjust benefit. Clark v. Daby, 300 AD2d 732 (3rd Dept. 2002); and Kagan v. K-Tel Entertainment, Inc., 172 AD2d 375 (1st Dept. 1991). Plaintiff must establish that the services were rendered at the request of the defendant. Prestige Caterers v. Kaufman, 290 AD2d 295 (1st Dept. 2002); and Lakeville Pace Mechanical, Inc. v. Elmar Realty Corp., 276 AD2d 673 (2nd Dept. 2000).
Ordinarily, a breach of contract action bars a claim for unjust enrichment. However, this litigation is in its infancy. The summary judgment motion was made after issue was joined but before discovery was conducted. Discovery may very well lead to the determination that the parties did not enter into a contract, yet the Plaintiff did perform work on behalf of some or all of the Defendants at their request. If such a determination were made, Plaintiff's unjust enrichment would be viable.
Plaintiff alleges that it did some work for the Defendants. Plaintiff also alleges that he attended approximately fifteen (15) meetings with Mark and Abraham in regard to the project. To the extent that Spector did work or attended meetings regarding the project at Mark or Abraham's request, Spector might be entitled to compensation. The
amount and from whom such compensation is due is in issue. Thus, summary judgment must be denied at this time.
D. Quantum Meruit
A party seeking to establish a claim in quantum meruit must prove "...(1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the service." Moors v. Hall, 143 AD2d 336, 337,338 (2nd Dept. 1988). See also, Precision Foundations v. Ives, 4 AD3d 589 (3rd Dept. 2004); and Clark v. Torian, 214 AD2d 938 (3rd Dept. 1995).
There are undeniably questions of fact regarding the elements of the quantum meruit action. Defendants question the value of Spector's services. There are questions as to whether Spector could or would render services alleged to be worth in excess of $250,000 in good faith without receiving any compensation or a signed agreement or having been paid a retainer. There are questions of fact regarding to whom and for whom the services were rendered. There are questions as to who accepted the services or where the services were accepted at all.
In view numerous issues of fact, the motion for summary judgment must be denied.
E. Account Stated
An action on an account stated is established by proving the defendant received and retained bills for services rendered or goods provided to the defendant without objection. Nebraskaland, Inc. v. Best Selections, Inc., 303 AD2d 662 (2nd Dept. 2003); and Herrick Feinstein LLP v. Stamm, 297 AD2d 477 (1st Dept. 2002). A cause of action for account stated cannot be maintained when the plaintiff does not establish that an account was presented to the defendant or the defendant establishes that it has contested the charges. See, M & A Construction Corp. v. McTague, 21 AD3d 610 (3rd Dept. 2005); and Abbott, Duncan & Wiener v. Ragusa, 214 AD2d 412 (1st Dept. 1995).
There are clearly questions of fact as to whom the accounts were stated. There are two separate sets of duplicate invoices. One set was addressed to Mark and Abraham. A second was addressed to Billy Smith's in care of Mark. The invoices are identical in all respects except as to whom they are addressed. Both sets of invoices were addressed to Mark's business address. [*5]
The Defendants dispute the amounts stated on the invoices. Mark asserts that he was never provided with several of the invoices.
Spector asserts that one set of the invoices were addressed to Smith care of Mark so that the invoices would not be confused with those of Mark's metal fabricating business. Mark avers that he never owned or operated a metal fabricating business.
Mark and Abraham deny that they were ever presented with the invoices addressed to them. They assert that these documents were prepared by Spector for the purposes of this litigation.
These disputes create issues of credibility which cannot be decided on a motion for summary judgment. See, Ferrante v. American Lung Assn., 90 NY2d 623 (1997); and Venetal v. City of New York, 21 AD3d 1087 (2nd Dept. 2005). This is pointed out on several occasions in Mark's reply affidavit when he states that the Court should not believe the averments made by Michael in his affidavit. Abraham similarly denies the averments in Michael's affidavit.
Plaintiff has failed to establish a prima facie case of account stated against Contrarion for any of the invoices. Spector has not established that the invoices were presented to Contrarion. Therefore, Contrarion must be granted summary judgment dismissing the fourth cause of action.
Accordingly, it is,
ORDERED, that Defendants' motion for summary judgment is granted to the extent of dismissing the fourth cause of action as to the Defendant Contrarion, L.P. and, in all other respects is denied; and it is further,
ORDERED, that counsel for the parties are directed to appear for a status and preliminary conference on January 12, 2006 at 9:30 a.m.
This constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
November 30, 2005 Hon. LEONARD B. AUSTIN, J.S.C.
Footnotes
Footnote 1:Lawrence Israeloff's involvement in this project and his relationship to Billy Smith's has not been disclosed.
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