CUH2A, Architects Engis. Planners, P.C. v PepsiCo, Inc.

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CUH2A, Architects Engis. Planners, P.C. v PepsiCo, Inc. 2016 NY Slip Op 32486(U) December 16, 2016 Supreme Court, New York County Docket Number: 115530/2009 Judge: O. Peter Sherwood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49 - - - - - - - -- - - -- - - - . . - - - --- - - -- - -·- - -- - - - - "'.x ' CUH2A, ARCHITECTS ENGINEERS PLANNERS, P.C., Decision and Order Plaintiff, -against- Index No.: 115530/2009 PEPSICO, INC., 'befendant. -------~----------~--------~---~·--X 0. PETER SHERWOOD, J.: In this motion, plaintiff CUH2A, Architects Engineers Planners, P.C:. (CUH2A) moves for summary judgment on its claims for breach of contract and quantum meruit, asserting defendant PepsiCo, Inc. (PepsiCo) failed to pay it for services it perforined related to the renovation and expansion of PepsiCo's headquarters in Purchase; New York. The parties agjee . . that they had entered into two agreements, one dated January 18, 2008 (Statements of Undisputed Material Facts [SUMF], ir 3) and a Letter ofintent dated April 7, 2008 (the LOI, id. if 5). The parties discussed additional work to . be performed, but dispute whether they entered into subsequent enforceable agreements~ To sustain a breach of contract cause of action, plaintiff m'ust show: ( 1) an agreement; (2) plaintiffs performance; (3) defendant's breach of that agreement; and (4) damages (see Furiav Furia, 116AD2d 694, 695 [2d Dept 1986]). "It is axiomatic that '[t]o create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms"' (Zheng v Cit,y ofNew York, 19 NY3d 556; 577 [2012] quoting Matter of Express Indus. &Term. Corp. v. New York State DepJ. of Tramp., 93 NY2d 584, 589 [1999D. 2 of 5 [* 2] Breach of Contract- the October Proposal· CUH2A claims it made a proposal to PepsiCo for the complete scope of professional work rclatcd,to PepsiCo~:s Project J{enew, which the defendant accepted, on October 30, 2008 (the OctoberProposal, id., t17). PepsiCo denies.agreeing to the October Proposal (id.). " . . - .. There is no signed.agreement. Plaintiff relie?. on ar~ote in the minutes .of a November 21; 2008 . . project meeting lhat ''QUH2Ahas revised thelt fees and JLLdiscussed with Carl yesterday. 1 Quinn has finalized with Richard and CUH2A·is Ndw moving.forward" (November·Mintites, attached as exhibit H to Lutz aff, NySCEF Doc. No. W2). As additional evidence, CUH2A claims there were no additional negotiations on thctopic.ofthe October Proposal, that proposal was never r~jected,. a~d CUH2A ·was ~ot told. not' tc'.> perform services pursuant to the proposal (CUI-I2A Memo at 8-9). PepsiCo argues that there was no agreement as lb the Oct_ober Proposal (Opp at 6). Jeffrey Dayton, CUH2A 's fortner Managing Principal testified that, as of a meeting he attended in March of 2009, negotiations about the October Proposal were still ongoing, and no Contract. related to that proposal was ever finalized, to.his ktiowledge (Opp at 6, Deposition of Jeffrey Dayton dated Aprj}28, 2~ 14, eyttacheci as e)\hi.QitC~ t{) M~fks aff, S}:J 1-:22):. "Carl Chaleski, PepsiCo's. Projectrvianagcr, testified. that, as of the December ll, 2008, ptoj ectmeeting, J:lepsiCo had not accepted the October Ptoposdt (Deposition ~fCarl Chale-ski dated March 3, 20 I 5, attached as exhibit Bto Marks aff, 121 ~23). PepsiCo also points to subsequent meeting minutes, . which it argues show.continued negotiations (Opp at 9, .citing December l7, 2008 Meeting Mfriutes, attached as exhibit EE to Mrirks ~ff, NYSCEFDo.c. No. 177;.February 4, 2009.Meeting Minutes, attached as exhibit FF·:to Marks aff, NYSCEF Doc,; No. {78). Further,.CUHZA prpject manager Richard Rosinski admitted in all e-::rhail that certain problems with.billing were being caused "due to a lack Of cnntract and :ari agreed fee" (Opp at 11, Rosinski e-mail to Kowal chuck, et al., dated December 24~ 2008, attached as exhibit GG to-Marks a:ff, NYSCEF Doc. No. 179). . -· . . When a finding-of whether a.~ontract actually exists is dependent ofi facts front which differing inferences may be drawn; a question offactarises (see Brown Bros. Elec;. Contractors, Inc. v Beam Con;LCorp., 41 NY2d 397, 400 [l9T7]). As there are disputed issues ~f mater-ial fact as to whether a contract existed; summaryjudgment must .be .dcrifod on the br.ea~h of cbntract claim related to tne October PrnposaL 2 3 of 5 [* 3] Breach of Contract.;. April Proposal CUH2A also claims PepsiCo askedit to pctfotrn services related to a planned Site Planning Application (the SPA Project), which PepsiCo intended.to submit to the local building department in December 20,08, and that C'tJH2A was told to continue with.SP A Project related work without having an'agreeinent (SUMF, irii 37-42, citing affidavit of Daniel Lu~, NYSCEF Doc. No. 94, iii! 42-43; Minutes from December 10'. 200~ Project Meeting,af.tached as exhibiU · to Lutz aff, al 4["Due to; fimc constraints, CUH2Awill work on la11d plannirig activities without the signed proposal In [sic] order to keep on schedulewithTown approvals, PepsiCo is in agreem~nC']). On April 20, 2009, CUH2A;µbmitted a final p~oposal to PepsiCo (the April Proposal), which,;the piaintill' cl;ums, docu~cnted PepsiCo's previous difeeti()ns to ;perform SP A Project related services, and indµ,dccfteims which were already agre_ed-upon (SUMF, il1! 43~44), PepsiCo contends CUH2A was not authorized to perform servfoes ·related to the SPA Project, and PepsiCo did not cxpectCUH2A would ·perforn1 such services (SUMF, iJ 37, Richard Rosinski email to CarLChaleski datedApriJ 28., 2009, attached as:exhibitJJto Marks aff, NYSCEF Doc. No. 182 [CUH2A "rnust bring to your attention.that we.have not received any authorization from.PepsiCo to perform these services"]). As with the October Proposal,. there is ii dispute of material fad as to whether there ~as manifestation of mutual assent to an agreement'rcgatdin,g the April Proposal. Accotdingly, summary judgmentrnust be denied on this.breach ofcontract claim. Quantum Mcruit Claim In the altcmative, absent a contract, GUH2Aasserts a claim for quantum meruit. CUH2A must establish {I) the perfcmrumce of services in good faith, (2) acc~ptance of the services by the person tO whom they are rendered, (3fan cxpcctatfort of compensation therefor, and (4) the reasonable van.1ec.)ftheservices-(Fl"eedmar1vPear/n~ai1, 271AD2d301; 304 (lsl . , Dept 2000]). CUH2A alleges it performed services (SUMF, ~I 56: Lutz an: i!64). PepsiCo claims thatthe services were perform~d pursuanttothe earlier agreements, and that PepsiCo was effectively being double-billed (SUM F, ir 56). CUJ-12A argttcs that, "while the same words were ' . . used l(J describe the services CUH2A was to perform, the services were perfonned, and used.. for different purposes'; (Reply at 19, cidng_Depositfon olDa:niel Lutz dated May 8, 20.l 4, aftacned • • '. < - • • ::. • as·exhibit B to Cohei1an: NYSCEFDoc. No. 197, atl4647}. The·cited deposition pages do not entirely supp9rt this premise, as Lutz acknowledged the deliverables being co1nparcd "could be 3 4 of 5 [* 4] [the exact-same charts and graphs]".'(id.). There arc issues of material fact as to the performaike and acceptance of services and the vah.re of those.services. Accordingly, sutnmary judgment on the quantum mcruit c.laim must also be .denied. Accordingly, it is hereby ORDERED that plaintiff CUH2A's motion for summary judgment is DENIED. The parties shall agpcar for a pretrial conference at 9:30 am on January 24, 2017. This constitutes the decision and order ofthe court. DATED: -ENTER~ Decelllher 16, 2016 /)J ~y-:;, I. 7 ( . \ V_, ~ ".' ?· ,((;,....~?:0rf?e''c;.~,.../ 0. PETER SHERWOOD J,S.C. 4 5 of 5

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