Palma Realty Assoc. Ltd. v Bldg Oceanside LLC

[*1] Palma Realty Assoc. Ltd. v Bldg Oceanside LLC 2018 NY Slip Op 50389(U) Decided on March 22, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2018
Supreme Court, New York County

Palma Realty Associates Ltd., Plaintiff,

against

Bldg Oceanside LLC, MASTER DEVELOPMENT, INC., doing business as ROSS RAMSEY EXCAVATION AND CONCRETE, Defendants.



152916/2015



Attorney for Plaintiff:

Kathleen R. Bradshaw

3114 East Tremont Ave.

Bronx, NY 10461

Attorney for Defendant Bldg Oceanside LL" target="_blank">see Maor v Blu Sand International, Inc., 143 AD3d 579, 579 [1st Dept 2016]; TADCO Construction Corp. v Dormitory Authority of the State of New York, 139 AD3d 471, 472 [1st Dept 2016]). In opposition, Palma argues that because its agreement with Master Development was oral, the quasi-contract and unjust enrichment claims survive. It argues that its agreement with Master Development essentially was a quasi-contract and, as a beneficiary of Palma's work, Oceanside is liable as well. In response, Oceanside states that based on the allegations in the complaint, it appears that an express contract existed between Palma and Master Development.[FN2]

The Court grants Oceanside's motion. "The existence of an express agreement, whether oral or written, governing a particular subject matter precludes recovery in quasi-contract for events arising out of the same subject matter" (Morales v Grand Cru Associates, 305 AD2d 647, 647 [2nd Dept 2003] [emphasis supplied]). Palma's agreement, although oral, was definite in its terms. The complaint acknowledges that the agreement contained specific terms and conditions obligating it to provide equipment and machinery to Master Development and that Master Development, in turn, had the specific obligation to pay $97,430.00 to Palma for its services. Thus, even though the agreement was not in writing, it bars a quasi-contract claim against Oceanside.

Accordingly, it is

ORDERED that the motion is granted and the action is severed and dismissed as against Oceanside, and the Clerk is directed to enter a judgment of dismissal against Oceanside; and it is further

ORDERED that the action as against Master Development shall continue; and it is [*3]further

ORDERED that the caption is amended to reflect the dismiss of Oceanside, and shall read

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY: IAS PART 34

X

PALMA REALTY ASSOCIATES LTD.,

Plaintiff,

Index No. 152916/2015

against-

MASTER DEVELOPMENT, INC., doing business as

ROSS RAMSEY EXCAVATION AND CONCRETE,

Defendants.

X

All future papers shall use the amended caption; and it is further

ORDERED that the remaining parties shall appear in Part 34, 80 Centre Street room 308 on Thursday April 19, 2018 at 2:15 p.m. for a preliminary conference.

Dated: March 22, 2018

ENTER:

____________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1: The Court need not discuss the motion as it relates to the discontinued causes of action.

Footnote 2: Oceanside also points to terms of its contract with AARK which state that subcontractors may not assert claims against Oceanside absent privity. As this is raised for the first time in reply, the Court does not address this argument.