Kushner Studios Architecture v Sendowksi

[*1] Kushner Studios Architecture v Sendowski 2009 NY Slip Op 50536(U) [23 Misc 3d 127(A)] Decided on March 30, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 8, 2009; it will not be published in the printed Official Reports.

Decided on March 30, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570536/07.

Kushner Studios Architecture and Design d/b/a Kushner Studios, Plaintiff-Respondent,

against

Pam Sendowski and Janusz Sendowski, Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered November 15, 2006, after a nonjury trial, which awarded plaintiff damages in the principal sum of $7,161.25 and dismissed defendants' counterclaims.

Per Curiam.

Judgment (Joan M. Kenney, J.), entered November 15, 2006, reversed, and matter remanded for a new trial, with $30 costs to abide the event.

Upon the trial of this action to recover for architectural services rendered, the court dismissed plaintiff's breach of contract cause of action on the ground that the written agreement "drafted and executed by both parties on August 26, 2003" was "ambiguous, particularly with respect to the fees allegedly agreed upon." The court awarded judgment to plaintiff based on quantum meruit, reasoning that the written contract was "unenforceable" and that "[s]ince the terms of plaintiff's compensation were not adequately set forth in the writing, an award based on quantum meruit is appropriate." Although both parties litigated defendants' counterclaims on the merits, the court, on its own initiative, declined to consider the second counterclaim based on its stated view that it was not served and filed in accordance with a prior order of the court. Defendants now appeal, and we reverse and order a new trial.

The existence of a valid and enforceable written contract precludes a quantum meruit claim (see Clark- Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; Sheiffer v Shenkman Capital Mgt., Inc., 291 AD2d 295 [2002]). The record establishes that the relationship between the parties was defined by a written contract and that both parties proceeded at trial on the theory that there was a binding written agreement. Thus, damages should not have been awarded on the basis of quantum meruit. Any ambiguity in the payment provisions of the parties' written contract could have been clarified with parol evidence (see Cole v Macklowe, 40 AD3d 396 [2007]). Moreover, the trial court erred in its sua sponterefusal to consider defendants' second counterclaim, which the record shows was served and filed by defendants and replied to, without objection, by plaintiff. [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 30, 2009