Danica Plumbing & Heating LLC v AMOCO Constr. Corp.

[*1] Danica Plumbing & Heating LLC v AMOCO Constr. Corp. 2008 NY Slip Op 50338(U) [18 Misc 3d 1137(A)] Decided on February 6, 2008 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 6, 2008
Supreme Court, Kings County

Danica Plumbing & Heating LLC now known as Danica Group LLC, Plaintiff,

against

AMOCO Construction Corp., West 26th Corp., Skillman Tower LLC and Federal Home Loan Mortgage Corporation a/k/a Freddie Mac, Defendants.



8994/07



The plaintiff was represented by:

Allyn & Fortuna

200 Madison Avenue - 5th Floor

New York, NY 100016

The defendant Amoco Construction Corp.

was represented by:

Mark Tulip, Esq.

26 Court Street

Brooklyn, New York 11242

The defendants West 25th Street Corp., Skillman Tower LLC

were represented by:

A.J. Ludwig, Esq

26 Court Street

Brooklyn, NY 11242

Mark I. Partnow, J.

Upon the foregoing papers, defendants West 26th Corp. and Skillman Tower, LLC (collectively, the "Owners") move for an order pursuant to CPLR 3211 (a) (1) and (7),[FN1] dismissing the first, third and fifth causes of action asserted by plaintiff Danica Plumbing & Heating LLC, now known as Danica Group LLC. Plaintiff cross-moves for an order: (1) pursuant to CPLR 3211 (c), converting the motion of the Owners from a motion to dismiss into a motion for summary judgment, and, after said conversion, granting plaintiff partial summary judgment against the Owners; and (2) pursuant to CPLR 3212, granting plaintiff partial summary judgment against defendant A.M.O. Co. Construction Corp., sued as AMOCO Construction Corp. ("AMO"). The Owners cross-move for an order, pursuant to CPLR 3211 (a) (7), dismissing the first cause of action. Lastly, AMO cross-moves for an order, pursuant to CPLR 3025, granting it leave to file and serve an amended answer.

Plaintiff commenced the instant action on or about March 13, 2007. The complaint alleges that plaintiff, a plumbing subcontractor, performed plumbing improvements on the subject real property known as 80 Skillman Street pursuant to an agreement between it and AMO. AMO is a general contractor hired in 2002 by West 26th Corp, the then-owner of the real property.

Plaintiff asserts that the work was completed on July 31, 2004, but that AMO owes plaintiff the amount of $74,254.00 under the contract. Thereafter, on March 22, 2005, plaintiff filed a notice of mechanic's lien with the office of the clerk of Kings County. This action subsequently ensued. The complaint seeks, inter alia, foreclosure of the mechanic's lien as well as damages for breach of contract and quantum meruit against AMO, West 26th Corp., and Skillman Tower, LLC (the current owner of the subject property).

In support of their motion to dismiss, the Owners assert that West 26th Corp. paid AMO in full pursuant to the general construction contract. The Owners argue that since AMO is not owed any additional amount by the Owners, the mechanic's lien is thus void. The Owners further assert that any cause of action alleging a breach of contract should be dismissed as asserted against them, since plaintiff was never party to an agreement with either West 26th Corp. or Skillman Tower, LLC. Lastly, the Owners assert that since plaintiff is claiming that AMO breached its contract between it and plaintiff, plaintiff's causes of action against West 26th Corp. and Skillman Tower, LLC that seek damages under a quantum meruit theory are duplicative and should be dismissed.

In opposition, and in support of its motion, plaintiff argues that the subject mechanic's lien is valid and enforceable. Plaintiff further argues that the Owners have no defense to foreclosure of the subject lien, claiming that the Lien Law disallows the fact that a general contractor has been paid in full as a defense to a mechanic's lien filed by a subcontractor. Plaintiff concludes that it is entitled to summary judgment on its foreclosure cause of action.

Plaintiff further argues that it is entitled to summary judgment on its causes of action alleging breach of contract and an account stated against AMO. Plaintiff offers copies of invoices that demonstrate AMO has not yet made payment in full. Lastly, plaintiff asserts that there is no merit to the motion to dismiss of the Owners, arguing that plaintiff is a third-party [*2]beneficiary of the general contractor agreement, or, in the alternative, that plaintiff should be allowed to recover in quantum meruit the reasonable value of the plumbing work performed.

The Owners also move to dismiss on the ground that plaintiff's notice of lien was not timely filed. The Owners note that section 10 of the Lien Law requires that the notice of lien be filed within eight months after the date of the last item of work performed or material furnished. However, the Owners assert that, notwithstanding plaintiff's claim that the plumbing work was completed on July 31, 2004, the copies of requisition statements submitted by plaintiff indicate that no plumbing work was performed after June of 2004. Since the lien was filed on March 22, 2005, the Owners argue that the lien was untimely by at least one month, pursuant to the Lien Law.

Lastly, in support of the motion by AMO for leave to file and serve an amended answer, and in opposition to plaintiff's arguments, AMO asserts that leave to amend pleadings should be freely given. AMO claims that the plumbing work performed by plaintiff was deficient in many respects, and that plaintiff thus failed to perform its obligations under the subject agreement. AMO contends that it should be allowed to incorporate these claims into its answer. Lastly, AMO asserts that plaintiff is not entitled to summary judgment on the cause of action alleging an account stated, because there is no merit to plaintiff's claim that neither the amount due nor the performance of the subject work have been disputed by AMO.

The court first grants the motion by AMO for leave to serve and file an amended answer. CPLR 3025 ("Amended and supplemental pleadings") states, in applicable part:

"(b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances."

Leave to amend pleadings should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law or unless prejudice directly results from the delay in seeking the amendment (Keller v Supreme Indus. Park, LLC, 293 AD2d 513, 514 [2002]; Nissenbaum v Ferazzoli, 171 AD2d 654 [1991]). The alleged prejudice in the proposed amendment must derive from "the omission from the original pleading of whatever it is the amended pleading wants to add€"some special right lost in the interim, some change of position, or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wanted to add" (Wyso v City of New York, 91 AD2d 661, 661 [1992]). Mere lateness, uncoupled with significant prejudice to the other side, does not bar an amendment (St. Paul Fire & Marine Ins. Co. v Town of Hempstead, 291 AD2d 488, 489 [2002]). Such authority to grant leave is committed to the sound discretion of the trial court (Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]; see also Murray v City of New York, 43 NY2d 400, 404-405 [1977]; but see Ripepe v Crown Equipment Corp., 293 AD2d 462, 463 [2002[, lv dismissed 98 NY2d 765 [2002] [although leave to amend should be freely granted, an amendment lacking in merit will not warrant such leave]).

Here, given the early stage of the instant action, there is no showing of prejudice to plaintiff (St. Paul Fire & Marine Ins. Co. v Town of Hempstead, 291 AD2d 488, 489 [2002). Also, plaintiff would be aware of the facts underlying the amendment, and the amendment thus contains no new facts that might prejudice any of the parties (see e.g. O'Connell v Consolidated Edison Co. of New York, Inc., 276 AD2d 608 [2000]). Moreover, given that no discovery has [*3]taken place, this court cannot find that the proposed amendment, asserting the alleged failure of plaintiff to perform obligations under the subcontract, lacks merit (cf. Ripepe v Crown Equipment Corp., 293 AD2d 462, 463 [2002[, lv dismissed 98 NY2d 765 [2002]). Accordingly, the motion of AMO is granted, and AMO is hereby granted leave to amend its answer. AMO is directed to serve and file its amended answer within thirty days of service of a copy of this order with notice of entry.

The court now considers the motions by the Owners. In considering a motion to dismiss, the court is required to view every allegation of the complaint as true and resolve all inferences in favor of the plaintiff regardless of whether the plaintiff will ultimately prevail on the merits (Figueroa v Market Training Institute, Inc., 167 AD2d 503, 506, [1990]; Grand Realty Co. v City of White Plains, 125 AD2d 639 [1986]). Given this standard, there is no merit to the assertion by the Owners that plaintiff's cause of action seeking foreclosure of the subject lien should be dismissed. Indeed, this court cannot grant a motion to dismiss that seeks discharge of the subject lien (see e.g. Young's L & M Const., Inc. v Kelley, 13 Misc 3d 307, 311 [2006] [CPLR 3211 cannot be used to discharge mechanic's lien; defendants should pursue statutory remedies for discharge of the mechanic's lien contained in Lien Law §§ 19, 20, 37, 59]). The Owners have thus failed to demonstrate that the facts alleged by plaintiff fail to "fit within any cognizable legal theory" (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). Lastly, since there is no apparent defect in the amended verified complaint, the court did not consider the submissions of the plaintiff in opposition to the instant motion (cf. Rotanelli v Madden, 172 AD2d 815 [1991]).

However, the court grants dismissal of plaintiff's causes of action for breach of contract and quantum meruit as against the Owners. In order for someone to be liable for a breach of contract, that person must be a party to the contract (A & V 425 LLC Contracting Co. v RFD 55th Street LLC, 15 Misc 3d 196, 204-208 [2007]; see also Smith v Fitzsimmons, 180 AD2d 177, 180 [1992] ["privity or its equivalent remains the predicate for imposing liability for nonperformance of contractual obligations"]; Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club, 156 AD2d 550, 551 [1989] ["a subcontractor may not assert a cause of action to recover damages for breach of contract against a party with whom it is not in privity"]; HDR, Inc. v International Aircraft Parts, 257 AD2d 603, 604 [1999] ["Neither of these defendants was a party to the contract alleged to have been breached. As such, they cannot be bound by the contract"]). Here, privity of contract does not exist between either of the Owners and plaintiff. Moreover, plaintiff, a subcontractor, is not considered a third-party beneficiary of a contract between the Owners and AMO (the general contractor) and is precluded from bringing suit against the owner (Barry, Bette & Led Duke v State of New York, 240 AD2d 54, 56 [1998], lv denied 92 NY2d 804 [1998], citing Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 282 [1978]). For these reasons, plaintiff's causes of action for breach of contract against the Owners are dismissed.

Additionally, plaintiff's causes of action seeking damages under a quantum meruit theory must be dismissed. If, as plaintiff asserts, it has fully performed under the subject plumbing agreement between AMO and plaintiff, plaintiff cannot seek quasi-contractual remedies. In Clark-Fitzpatrick, Inc. v Long Is. R.R. Co. (70 NY2d 382 [1987]), the Court of Appeals stated as follows:

"The existence of a valid and enforceable written contract governing a particular subject matter [*4]ordinarily precludes recovery in quasi contract for events arising out of the same subject matter. A quasi contract' only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment. . . . It is impermissible . . . to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties" (Id. at 388-389 [citations omitted]; see also Goldstein v CIBC World Mkts. Corp., 6 AD3d 295, 296 [2004] ["A claim for unjust enrichment, or quasi contract, may not be maintained where a contract exists between the parties covering the same subject matter"]; Scavenger, Inc. v GT Interactive Software Corp., 289 AD2d 58, 59 [2001] ["since the matters here in dispute are governed by an express contract, defendant's counterclaim for unjust enrichment was properly found untenable"]; Sheiffer v Shenkman Capital Mgt., 291 AD2d 295, 295 [2002] ["the existence of a valid and enforceable written contract governing the disputed subject matter precludes plaintiffs from recovering in quantum meruit"]).

This prohibition against quasi-contractual claims where a written contract exists applies not only to the parties that are in privity of contract, but also to noncontracting parties as well (Feigen v Advance Capital Mgt. Corp., 150 AD2d 281, 283 [1989], appeal dismissed in part and denied in part 74 NY2d 874 [1989] ["a nonsignatory to a contract cannot be held liable where there is an express contract covering the same subject matter"]; see also Bellino Schwartz Padob Adv. v Solaris Mktg. Group, 222 AD2d 313, 313 [1995] [existence of an express contract between defendant and plaintiff governing the subject matter of the plaintiff's claims also bars any quasi-contractual claims against defendant third-party nonsignatory to ostensibly valid and enforceable contract]). The prohibition applies where, as here, a subcontractor has attempted to sue an owner when privity of contract does not exist:

"Where there is an express contract, as here, between the general contractor and the subcontractor, the owner of the subject premises may not be held directly liable to the subcontractor on a theory of implied or quasi-contract, unless he has in fact [expressly] assented to such an obligation; the mere fact that he has consented to the improvements provided by the subcontractor and accepted their benefit does not render him liable to the subcontractor, whose sole remedy lies against the general contractor" (Contelmo's Sand & Gravel v J & J Milano, 96 AD2d 1090, 1090 [1983]; see also Metropolitan Elec. Mfg. Co. v Herbert Constr. Co., 183 AD2d 758, 759 [1992] ["the existence of an express contract between (a supplier) and (a subcontractor) governing the particular subject matter of its claim for unjust enrichment precludes (the supplier) from maintaining a cause of action sounding in quasi contract against (the general contractor) or the owners"]).

Moreover, "a property owner who contracts with a general contractor does not become liable to a subcontractor on a quasi-contract theory unless it expressly consents to pay for the subcontractor's performance" (Perma Pave Contr. Corp., 156 AD2d at 551), and said express consent does not appear here. "The owner's mere consent to and acceptance of improvements placed on his property by the subcontractor, without more, does not render it liable to the [*5]subcontractor" (Id. citing Contelmo's Sand & Gravel v J & J Milano, 96 AD2d 1090 [1983]). For these reasons, all of plaintiff's causes of action that seek damages under a quantum meruit or any other quasi-contractual theory are dismissed.

Lastly, the court denies plaintiff's motion for, in essence, summary judgment. The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Moreover, summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues (Kolivas v Kirchoff, 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Further, with respect to a motion for summary judgment, "issue finding rather than issue determination is the key" (Matter of Cuttitto Family Trust, 10 AD3d 656, 657 [2004]). Also, "[s]ince summary judgment is the procedural equivalent of a trial, any doubt as to the existence of a triable issue, or where that material issue of fact is arguable, the motion should be denied" (id. [internal quotes omitted]; see also Salino v IPT Trucking, 203 AD2d 352 [1994]; Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 AD2d 572 [1989]). "[I]n deciding the [summary judgment] motion, the court is required to accept the opposing party's version of the facts as true" (Jablonski v Rapalje, 14 AD3d 484, 486 [2005]). Indeed, the party opposing a motion for summary judgment is entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions of the parties (Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2003]; see also Akseizer v Kramer, 265 AD2d 356 [1999]; Henderson v City of New York, 178 AD2d 129, 130 [1991]; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [1976]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1990]). The credibility of persons possessed of exclusive knowledge of the facts should not be determined on affidavits (Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [1984]). Lastly, parties seeking summary judgment have the burden of establishing their prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of their claim or defense, rather than by pointing to gaps in the opponent's proof (Nationwide Prop. Cas. v Nestor, 6 AD3d 409, 410 [2004]; Katz v PRO Form Fitness, 3 AD3d 474, 475 [2004]; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532 [2003]).

Here, the court must accept as true the allegation of AMO that plaintiff failed to perform its obligations under the plumbing subcontract (Jablonski v Rapalje, 14 AD3d 484, 486 [2005]). Moreover, as stated above, the court must accept as true the contention of the Owners that plaintiff did not perform plumbing work on the subject premises after June of 2004. There thus appears to be an issue of fact with respect to whether the subject lien was timely filed on March 22, 2005 (Lien Law § 10 [1] ["Notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished . . ."]).

Lastly, the court denies plaintiff summary judgment on its cause of action for an alleged account stated against AMO. Unless the precise amount due is established, a plaintiff is not entitled to summary relief on an account stated theory (see e.g. Reid & Priest L.L.P. v. Realty [*6]Asset Group, Ltd., 250 AD2d 380 [1998]). The court must accept as true the contention of AMO that it promptly objected to the invoices submitted by plaintiff, and plaintiff is thus not entitled to summary judgment (see e.g. 1000 N. of NY Co. v Great Neck Med. Assoc., 7 AD3d 592, 593 [2004]; Hornell Brewing Co. v High Grade Beverage, 276 AD2d 593, 594 [2000]; Sandvoss v Dunkelberger, 112 AD2d 278, 279 [1985]; Prudential Bldg. Maintenance Corp. v Siedman Assoc., 86 AD2d 519 [1982]). Indeed, "t]he very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness . . . so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained" (Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154 [1975], quoting Newburger-Morris Co. v Talcott, 219 NY 505, 512 [1916]). For these reasons, plaintiff has failed to demonstrate the absence of issues of fact. In addition, summary judgment pursuant to CPLR 3212 should be denied as premature since discovery has not yet been completed (CPLR 3212 [f]; see also Sportiello v City of New York, 6 AD3d 421 [2004]; Destin v New York City Tr. Auth., 303 AD2d 713 [2003]; Rajan v Insler, 300 AD2d 463 [2002]).

In sum, the court grants the motion by defendant A.M.O. Co. Construction Corp., sued as AMOCO Construction Corp., for leave to serve and file an amended pleading. The motions by defendants West 26th Corp. and Skillman Tower, LLC are granted only to the extent that plaintiff's breach of contract causes of action against a West 26th Corp. and Skillman Tower, LLC are dismissed, and plaintiff's causes of action seeking quantum meruit and any other quasi-contractual remedies are dismissed, and is otherwise denied. The motion by plaintiff for summary judgment is denied.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S . C. Footnotes

Footnote 1: The notice of motion contains a typographical error, referring to CPLR 3111 instead of CPLR 3211.