Richard R. Brown Assoc. P.C. v Wildenstein

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Richard R. Brown Assoc. P.C. v Wildenstein 2017 NY Slip Op 31584(U) July 27, 2017 Supreme Court, New York County Docket Number: 151019/2013 Judge: Kathryn E. Freed 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. [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 1] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED PART 2 Justice -------------------------:-----------------.------------------------,.------------X RICHARD R. BROWN ASSOCIATES PC, INDEX NO. 151019/2013 · Plaintiff, MOTION SEQ. NO. 003 -vDECISION AND ORDER JOCELYN WILDENSTEIN et al., Defendants. -------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38,40,41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60,61, 62,63,64,65,66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 were read on this application to/for SUMMARY JUDGMENT (AFTER JOIN DER) In this action to recover for architectural services rendered, defendant Jocelyn Wildenstein (hereinafter "defendant") moves for s·ummary judgment dismissing the complaint. Plaintiff opposes. Following oral argument, and upon a review of the papers submitted as well as the relevant statutes and case law, the motion is granted, in part. In 2011, Richard Brown, an architect and principal of plaintiff, was introduced to defendant through a friend. (Doc. No. 29.) In August 2011, Brown and defendant discussed the possibility of plaintiff designing a large renovation of defendant's apartment at 845 United Nations Plaza, Unit 51 E. Brown provided defendant with a "Standard Form of Agreement Between Owner and Architect." There is some uncertainty as to when this occurred. Brown 151019/2013 BROWN.RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 1 of 8 Page 1of8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 2] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 testified that he provided defendant with the proposed contract on August 22, 2011. (Doc. No. 33.) Defendant never signed it. Instead, in September 201 l, she sent the contract to Lawrence Carnevale, an attorney, to review and edit it. The papers reveal that several revisions of the contract were exchanged between Carnevale and Brown. 1 Ultimately, defendant never signed the contract and elected not to implement Brown's plans. Despite the fact that no contract was signed, Brown proceeded with drawing up designs as well as sourcing materials and labor. (Doc. No. 63.) Plaintiff contends that it sent defendant three invoices, dated September I, 2011 for $17,990.50, October 2, 2011 for $39,475.75, and November I, 2011 for $41, 175.79 for the design work. (Doc. No. 67.) Plaintiff contends that, in a telephone conversation between Brown and defendant, defendant agreed that she would accept monthly billings for work completed until a final contract was executed. Plaintiffs breach of contract claim focuses on this oral contract rather than the unsigned written contracts. Plaintiff also makes claims sounding in unjust enrichment and an account stated. The mechanic's lien foreclosure cause of action has been abandoned A contract requires a "meeting of the minds." Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 (2016); see DCR Mtge. Sub I, LLC v People United Fin., Inc., 148 AD3d 986, 987 (2d Dept 2017). "An oral agreement may be enforceable as long as the terms are clear 1 This Court must express its dissatisfaction with the quality and organization of the papers on both sides, which approach the limit of what this Court is willing to overlook without requiring the parties to refile. As for defendant's submissions, the affidavits are repetitive, replete with editorialization, and generally fail to set forth a timeline of events in any logical manner with adequate citations to the papers. Some of the portions of the transcripts submitted are so short that they are difficult to understand out of context. There are also multiple documents submitted together under single exhibit tabs without proper explanation or introduction. As for plaintiffs papers, none of the exhibits are adequately labeled either in NYSCEF or in the attorney affirmation introducing the exhibits, so one is required to open each one to know what the exhibit is. 151019/2013 BROWN.RICHARD R. vs. WILDENSTEIN,JOCELYNE Motion No. 003 2 of 8 Page 2 of 8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 3] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 and definite and the conduct of the parties evinces mutual assent 'sufficiently definite to assure that the parties are truly in agreement with respect to all material terms."' Kramer v Greene, 142 AD3d 438, 439 (1st Dept 2016), quoting Matter of Express Indus. & Term. Corp. v New York State Dept. ofTransp., 93 NY2d 584, 589 (1999). On the other hand, "if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed." Stonehill Capital Mgt. LLC v Bank of the W, 28 NY3d at 451 (internal quotation marks and citation omitted); see Moulton Paving, LLC v Town of Poughkeepsie, 98 AD3d l 009, l 011 (2d Dept 2012); Amcan Holdings, Inc. v Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 ( l st Dept 2010), Iv denied 15 NY3d 704 (201 O); ADCO Elec Corp. v HRH Constr., LLC, 63 AD3d 653, 654-655 (2d Dept 2009); compare Gallagher v Long Is. Plastic Surgical Group, P.C., 113 AD3d 652, 653 (2d Dept 2014), Iv denied 22 NY3d 865 (2014). Here, the papers establish that the parties exchanged a written agreement that encompassed the entirety of plaintiffs services, from design to construction, and that defendant never signed the agreement. Because defendant never signed the agreement - and, indeed, made significant changes to the document before returning it to plaintiff - it can be inferred that there was no intent to be bound. This, alone, suffices to establish prima facie entitlement to dismissal of the breach of contract cause of action. In opposition, plaintiff asserts that the contract was an oral one. That is, despite the fact that defendant refused to sign the contract, during a phone conversation, she agreed that plaintiff would begin the project and would bill defendant monthly. The papers and testimony are not consistent with the existence of an oral contract, however, since there is no indication that the parties ever sufficiently agreed to all material terms. Most notably, Brown testified that he was 151019/2013 BROWN,RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 3 of 8 Page 3 of 8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 4] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 under a completely mistaken impression with respect to the amount that defendant was able to spend on the project. While he initially believed that defendant could spend as much as $6 million, her budget was in fact $2.5 million. Furthermore, plaintiff billed defendant for various types of work at various hourly rates. Such a significant misunderstanding belies a claim that the parties had a meeting of the minds as to the terms of plain ti ff s engagement. During Brown's arbitration testimony, when he stated that, during a 30-minute phone conversation, defendant assented to be billed monthly, he never sufficiently detailed the scope of the pre-contract-execution work. Brown did not testify that he outlined precisely what services he would be providing before the contract was signed and that when those services would become billable. It is especially notable in this regard that Brown never followed up with defendant by email to make certain that she understood that plaintiff would begin work immediately and that there would be monthly billing until a contract was signed. Since plaintiff has failed to raise an issue of fact as to whether there was a sufficient meeting of the minds between Brown and defendant that encompassed the scope of the work to be performed prior to signing the written contract, the br~ach of contract cause of action must be dismissed. "An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due." Cach. LLC v Aspir, 137 AD3d 1065, 1066 (2d Dept 2016) (internal quotation marks and citations omitted; see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 (3d Dept 2013); American Express Centurion Bank v Cutler, 81 AD3d 761, _762 (2d Dept 2011). "An account stated assumes the existence of some indebtedness between the parties, or an agreement to treat the statement as an account stated. It cannot be used to create liability where none otherwise exists" (Ryan Graphics, Inc. v Bailin, 39 AD3d 249, 251 [1st Dept 2007]), nor can it 151019/2013 BROWN,RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 4 of 8 Page 4 of 8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 5] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 "be utilized simply as another means to attempt to collect under a disputed contract" (Sabre Intl. Sec., Ltd. v Vulcan Capital Mgt., Inc., 95 AD3d 434, 438 [1st Dept 2012]). To prevail on a cause of actioq for an account stated, the plaintiff must show "invoices, receipt by defendant, and lack of objection by defendant for a substantial period of time." L.E.K. Consulting LLC v Menlo Capital Group, LLC, 148 AD3d 527, 528 (I st Dept 2017); GP/ Entertainment, LLC v Aviv Fa<;ade Solutions, I 44 AD3d 409 (I st Dept 20 I 6); Perine Intl. Inc. v Bedford Clothiers, Inc., 143 AD3d 49 I, 493 (1st Dept 2016). Courts have generally held that, in order to constitute assent, the invoices must be held without specific objection or protest for a period of several months. See e.g. Abyssinian Dev. Corp. v Bistricer, 133 AD3d 435, 436 (1st Dept 2015); American Express Bank FSB v Najieb, 125 AD3d 470, 471 (1st Dept 2015); Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178 (3d Dept 2012); .JB.H, Inc. v Godinez, 34 AD3d 873, 875 (3d Dept 2006); compare Matter Adam Props., Inc. v United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 126 AD3d 599, 601 (1st Dept 2015). Initially, defendant asserts that, since there was no contract, there can be no indebtedness sufficient to allow a cause of action for an account stated. This is inaccurate. Since plaintiff undeniably performed work for defendant's benefit, had defendant held onto the invoices for a sufficient amount of time, an inference may have arisen that the invoices constituted the extent of plaintiffs compensation. At the very least, a failure to object, effectively lulling Brown into believing that he would be compensated for his services, could have established an account stated. The problem, however, is that defendant did not hold onto the invoices for a sufficient period of time. It should be noted that neither party's papers make it clear precisely when 151019/2013 BROWN,RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 5 of 8 Page 5 of 8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 6] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 defendant obtained the invoices. Even assuming, for the sake of argument, that the invoices were received about when they were sent, the parties' relationship broke down within a few months thereafter. The first invoice was sent in August 2011 and, by the beginning of November 2011, defendant rejected plaintiffs plains, and plaintiff stopped work and demanded payment on the invoices. Since plaintiff cannot establish that defendant retained the invoices without objection for a period of at least several months, there is no inference of assent and no cause of action for an account stated. As for plaintiffs unjust enrichment theory, to recover for the value of services rendered on a quantum meruit basis, in the absence of an enforceable contract, a plaintiff must show that he or she "performed valuable services in good faith, ... that the services were rendered with an expectation of compensation, and that they were accepted by [the] defendant." Eastern Consol. Props., Inc. v Waterbridge Capital LLC, 149 AD3d 444, 444 (1st Dept 2017); see Home Constr. Corp. v Beaury, 149 AD3d 699, 702 (2d Dept 2017); Fullbright & Jaworski, LLP v Carucci, 63 AD3d 487, 488-489 (1st Dept 2009); Pellegrino v Almasian, 10 AD2d 507, 509 (3d Dept 1960); Adamo v Blohm, 97 App Div 629 (2d Dept 1904); cf ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d 653 (2d Dept 2009). Defendant has failed to establish prima facie entitlement to summary judgment as to this cause of action. Defendant is mistaken in arguing that, merely because she did not utilize the drawings that plaintiff submitted to her, she did not accept them for purposes of unjust enrichment. See e.g. Adamo v Blohm, 97 App Div at 629. Contrary to her position, defendant benefited from plaintiffs services inasmuch as she was provided with a design that she could have used. Even assuming that defendant's papers satisfied her initial burden on the motion, plaintiffs opposition raised issues of fact as to the ability to a quasi contract theory. Brown's 151019/2013 BROWN,RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 6 of 8 Page 6 of 8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 7] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 arbitration testimony raises questions as to whether defendant requested that plaintiff spend a substantial amount of time and effort on the project. The parties had an arm's length relationship that implied an obligation to compensate plaintiff for services rendered in good faith. Although there is some uncertainty as to whether and the extent to which plaintiffs work on the project was reasonable in light of defendant's refusal to sign the contract, and the specific communications between the parties, that presents a question of fact. As for defendant's assertion that plaintiff cannot recover because of a failure to maintain a license in New York State, she is mistaken that plaintiff was unlicensed. In reality, plaintiff's license in this State was merely changed to inactive. Compare Park Ave. & 35th St. Corp. v Piazza, 170 AD2d 410 (I st Dept 1991 ); P. C. Chipouras & Assoc. v 2 I 2 Realty Corp., 156 AD2d 549 (2d Dept 1989). Plaintiff presented evidence that the necessary fees were paid to bring the license back to active status before negotiations with defendant took place. Although plaintiff's status was not officially returned to active until after negotiations with defendant commenced, this is not a basis to preclude plaintiff from compensation. Cf Benjamin v Koeppel, 85 NY2d 549, 551 (1995). Accordingly, it is hereby: 151019/2013 BROWN.RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 7 of 8 Page 7 of 8 [*FILED: NEW YORK COUNTY CLERK 07/27/2017 03:05 PM 8] NYSCEF DOC. NO. 90 INDEX NO. 151019/2013 RECEIVED NYSCEF: 07/27/2017 ORDERED that the motion is granted, in part, the causes of action for foreclosure of a mechanic's lien, breach of contract, and accounts stated are dismissed, and the motion is otherwise denied. This constitutes the decision and order of the court. 7/27/2017 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 151019/2013 ~ROWN,RICHARD R. vs. WILDENSTEIN, JOCELYNE Motion No. 003 8 of 8 D D OTHER REFERENCE Page 8 of 8

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