By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Bijan Karimian, appellant-res, v. Time Equities, Inc. respondents-ap — (Index No. 13026/13)In an action, inter alia, to recover damages for discrimination and retaliation under Executive Law §296 and Administrative Code of the City of New York §8-107, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated December 9, 2015, as granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the causes of action alleging violations of Administrative Code of the City of New York §8-107 as barred by the doctrine of collateral estoppel, and the defendants cross-appeal from so much of the same order as, upon their request to treat those branches of their motion which were to dismiss the causes of action alleging breach of contract and for quantum meruit as seeking summary judgment pursuant to CPLR 3211(c) dismissing those causes of action, denied summary judgment with respect to those causes of action.ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.The plaintiff, an Iranian American, was employed by the defendant Time Equities, Inc. (hereinafter Time Equities). In 2010, the plaintiff commenced an action in the United States District Court for the Southern District of New York against the defendants herein, Time Equities and individuals affiliated with the firm, alleging discrimination and hostile work environment based on race, national origin and gender, and retaliation under Title VII of the Civil Rights Act of 1964 (42 USC, ch 21, §2000e et seq.; hereinafter Title VII), the New York State Human Rights Law (see Executive Law §296) (hereinafter NYSHRL), and the New York City Human Rights Law (see Administrative Code of City of NY §8-107) (hereinafter NYCHRL). The plaintiff also alleged causes of action to recover damages for breach of contract and for quantum meruit. The defendants moved for summary judgment dismissing the complaint, and the District Court granted the defendants’ motion, dismissed the federal claims, and declined to exercise supplemental jurisdiction over the state and local claims. Thereafter, the District Court denied the plaintiff’s motion for reconsideration (see Karimian v. Time Equities, Inc., 2013 WL 2254557, 2013 US Dist LEXIS 74736 [SD NY, No.10-Civ-3773(AKH)]). The United States Court of Appeals for the Second Circuit affirmed the District Court’s original order (see Karimian v. Time Equities, Inc., 569 Fed. Appx 54 [2d Cir]). The Court explained that, “viewing the record in a light most favorable to the plaintiff, there was ‘an overabundance of evidence’ of ‘legitimate, nonretaliatory, and nondiscriminatory reasons’ for terminating the plaintiff’s employment, ‘that is, the company’s significant cost-reducing measures—taken… in the wake of the 2008 financial downturn” (id. at 55). The Second Circuit further found that “[n]o reasonable juror could conclude that bias against those of Iranian national origin motivated the discharge” or that the plaintiff’s discharge was in retaliation for his complaint about a coworker’s allegedly discriminatory conduct, or that he was subjected to a hostile work environment (id.).In 2013, the plaintiff commenced this action in the Supreme Court alleging discrimination and hostile work environment based on race, national origin, and gender, and retaliation under NYSHRL and NYCHRL. The plaintiff also alleged causes of action to recover damages for breach of contract and for quantum meruit. The defendants moved pursuant to CPLR 3211 to dismiss the complaint. The Supreme Court granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss the causes of action under NYSHRL and NYCHRL as barred by the doctrine of collateral estoppel, and, upon their request to treat those branches of their motion which were to dismiss the causes of action alleging breach of contract and for quantum meruit as seeking summary judgment pursuant to CPLR 3211(c) dismissing those causes of action, denied summary judgment with respect to those causes of action on the ground that there were issues of fact. The plaintiff appeals, contending that the court erred in granting dismissal of the causes of action under NYCHRL, and the defendants cross-appeal, contending the court erred in denying summary judgment with respect to the causes of action alleging breach of contract and for quantum meruit.A party may move for judgment dismissing one or more causes of action asserted against him or her on the ground that the cause of action may not be maintained because of collateral estoppel (see CPLR 3211[a][5]). The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 NY2d 494, 500). The doctrine of collateral estoppel applies when: “(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits” (Conason v. Megan Holding, LLC, 25 NY3d 1, 17 [internal quotation marks omitted]). ”Where a federal court declines to exercise jurisdiction over a plaintiff’s state law claims, collateral estoppel may still bar those claims provided that the federal court decided issues identical to those raised by the plaintiff’s state claims” (Milione v. City Univ. of N.Y., 153 AD3d 807, 808-809; see Clifford v. County of Rockland, 140 AD3d 1108, 1110; Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 23) The provisions of NYCHRL must be “construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof,” regardless of whether similarly worded federal or New York State civil and human rights laws have been so construed (Administrative Code of City of NY §8-130[a]; see Makinen v. City of New York, 30 NY3d 81, 87; Albunio v. City of New York, 16 NY3d 472, 477; Singh v. Covenant Aviation Sec., LLC, 131 AD3d 1158, 1161). Accordingly, a cause of action asserted pursuant to NYCHRL must be analyzed independently from similar or identical causes of action asserted pursuant to Title VII and/or NYSHRL. However, where a prior factual determination rendered with regard to a Title VII or NYSHRL cause of action is determinative of a cause of action asserted pursuant to NYCHRL in a subsequent action, the NYCHRL cause of action may be barred pursuant to the doctrine of collateral estoppel (see Milione v. City Univ. of N.Y., 153 AD3d 807; Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 116 AD3d 134, 139; Peterkin v. Episcopal Social Servs. of N.Y., Inc., 24 AD3d 306, 308).Here, the factual determinations made by the federal courts with regard to the causes of action alleging discrimination, retaliation, and hostile work environment under Title VII were determinative of the plaintiff’s identical claims asserted in this action pursuant to NYCHRL (see Milione v. City Univ. of N.Y., 153 AD3d 807; Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 116 AD3d at 139; Peterkin v. Episcopal Social Servs. of N.Y., Inc., 24 AD3d at 308). Accordingly, we agree with the Supreme Court’s determination to grant dismissal of those causes of action as barred by the doctrine of collateral estoppel.With respect to the defendants’ cross appeal, CPLR 3211(c) provides, “[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.” Although the path the defendants took in moving pursuant to CPLR 3211(c) was procedurally questionable, they charted their own course in this instance. There was no need to give the plaintiff an opportunity to file additional papers because the defendants failed to establish their prima facie entitlement to judgment as a matter of law by failing to tender sufficient evidence to eliminate any issues of fact with respect to those causes of action. Accordingly, the defendants were properly denied summary judgment, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach (see Tri-Star Light. Corp. v. Goldstein, 151 AD3d 1102, 1105; Hampshire Props. v. BTA Bldg. & Developing, Inc., 122 AD3d 573, 573; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803). Contrary to their contention, the defendants failed to meet their prima facie burden of demonstrating that they did not breach a contract as alleged by the plaintiff. The evidence submitted by the defendants was not sufficient to establish that the contract was unenforceable as based solely on past consideration and/or that the defendants honored their contractual obligations by paying the plaintiff a $14,000 bonus in 2008. In light of the defendants’ failure to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging breach of contract, that branch of their motion which was to dismiss that cause of action was properly denied regardless of the sufficiency of the plaintiff’s opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).The elements necessary to establish a cause of action for quantum meruit are the performance of services in good faith, acceptance of services by the person to whom they are rendered, expectation of compensation therefor, and reasonable value of the services rendered (see Evans-Freke v. Showcase Contr. Corp., 85 AD3d 961, 962; AHA Sales, Inc. v. Creative Bath Products, Inc., 58 AD3d 6, 19; Tesser v. Allboro Equip. Co., 302 AD2d 589, 590). Where there is a bona fide dispute as to the existence of a contract, a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract, and is not required to elect his or her remedies (see AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 AD3d at 20; Hochman v. LaRea, 14 AD3d 653, 655; Zuccarini v. Ziff-Davis Media, 306 AD2d 404, 405). Contrary to the defendant’s contention, the evidence submitted by them failed to establish as a matter of law that the plaintiff could not establish the reasonable value of his services and/or that the plaintiff was compensated for his services. Accordingly, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover in quantum meruit, and that branch of their motion was properly denied regardless of the sufficiency of the plaintiff’s opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853).CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.
By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.Golden Mountain Income, LLC, appellant-res, v. Spencer Gifts, LLC, respondent-appellant def — (Appeal No. 1) Golden Mountain Income, LLC, res, v. Spencer Gifts, LLC, appellant def — (Appeal No. 2) (Index No. 34071/11)In an action, inter alia, to recover damages for breach of contract, (1) the defendant Spencer Gifts, LLC, appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated July 30, 2014, and (2) the plaintiff appeals and the defendant Spencer Gifts, LLC, cross-appeals from a judgment of the same court entered August 25, 2015. The order denied the motion of the defendant Spencer Gifts, LLC, for summary judgment dismissing the second amended complaint insofar as asserted against it. The judgment, upon an order of the same court dated August 11, 2015, granting the motion of the defendant Spencer Gifts, LLC, pursuant to CPLR 4401, made at the close of the plaintiff’s case, for judgment as a matter of law, is in favor of the defendant Spencer Gifts, LLC, and against the plaintiff dismissing the second amended complaint insofar as asserted against that defendant.ORDERED that the appeal from the order dated July 30, 2014, and the cross appeal from the judgment are dismissed; and it is further,ORDERED that the judgment is reversed, the motion of the defendant Spencer Gifts, LLC, pursuant to CPLR 4401 for judgment as a matter of law is denied, the order dated August 11, 2015, is modified accordingly, and the matter is remitted to the Supreme Court, Rockland County, for a new trial; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The defendant DNP Sales & Marketing, Inc. (hereinafter DNP), sold merchandise, including jewelry, to the defendant Spencer Gifts, LLC (hereinafter Spencer), to be sold in Spencer’s retail stores pursuant to various purchase agreements. The plaintiff, Golden Mountain Income, LLC, loaned money to DNP pursuant to a loan factoring agreement that was secured by DNP’s accounts receivables. In a letter dated May 14, 2009, DNP advised Spencer of its loan factoring agreement with the plaintiff and that the letter “serves as your irrevocable authority to pay all current and future invoices directly and solely to [the plaintiff]” at a given address. The letter also stated that “ [t]his arrangement will remain in effect unless revoked in writing by [the plaintiff].” It is undisputed that the aforementioned arrangement was never revoked by the plaintiff. After allegedly making payments pursuant to the May 14, 2009, letter for a period of time, Spencer ceased doing so. At around the same time, Spencer ceased doing business with DNP and began doing business with the defendant Forshay Marketing Corp. (hereinafter Forshay), which sold jewelry to Spencer for sale at Spencer’s retail stores, and paying Forshay’s invoices directly to Forshay.The plaintiff commenced this action alleging, inter alia, that it was a third-party beneficiary to the purchase agreements between DNP and Spencer, that Forshay was DNP’s successor such that it assumed DNP’s obligations under the loan factoring agreement, that Spencer knew that Forshay succeeded DNP when Spencer paid Forshay’s invoices directly to Forshay, and that under these circumstances, Spencer was liable in breach of contract to the plaintiff for the payments it made directly to Forshay instead of to the plaintiff. Following the completion of discovery, Spencer moved for summary judgment dismissing the second amended complaint insofar as asserted against it. In an order dated July 30, 2014, the Supreme Court denied the motion.The action proceeded to a jury trial. At the close of the plaintiff’s case, Spencer moved pursuant to CPLR 4401 for judgment as a matter of law. The Supreme Court granted Spencer’s motion, and a judgment was entered dismissing the second amended complaint insofar as asserted against Spencer. Spencer appeals from the order dated July 30, 2014, and the plaintiff appeals and Spencer cross-appeals from the judgment.Spencer’s appeal from the order dated July 30, 2014, should be dismissed because the right of direct appeal therefrom terminated with entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are bought up for review and have been considered on the plaintiff’s appeal from the judgment (see CPLR 5501[a][1]). Spencer’s cross appeal from the judgment should be dismissed because it is not aggrieved by the judgment (see CPLR 5511).In support of its motion for summary judgment, Spencer failed to establish its prima facie entitlement to judgment as a matter of law. Spencer failed to submit evidence in admissible form that would eliminate triable issues of fact as to the relationship or lack thereof between DNP and Forshay as alleged in the second amended complaint and as to Spencer’s alleged liability to the plaintiff for breach of contract under a third-party beneficiary theory (see generally Zuckerman v. City of New York, 49 NY2d 557; Greater Bright Light Home Care Servs., Inc. v. Jeffries-El, 151 AD3d 818; Nanomedicon, LLC v. Research Found. of State Univ. of N.Y., 112 AD3d 594, 596; Roche v. Bryant, 81 AD3d 707, 708; Matter of AT&S Transp., LLC v. Odyssey Logistics & Tech. Corp., 22 AD3d 750, 752). Accordingly, we agree with the Supreme Court’s denial of Spencer’s motion for summary judgment dismissing the second amended complaint insofar as asserted against it regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).“A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v. Pilat, 90 NY2d 553, 556). In considering such a motion, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (id. at 556).Here, viewing the trial evidence in the light most favorable to the plaintiff, there was a rational process by which the jury could base a finding in favor of the plaintiff on the issues of whether Forshay was a successor in interest to DNP, and whether Spencer was liable for breach of contract to the plaintiff as a third-party beneficiary. Accordingly, the Supreme Court should not have granted Spencer’s motion pursuant to CPLR 4401 for judgment as a matter of law, and we must remit the matter to the Supreme Court, Rockland County, for a new trial.The plaintiff’s remaining contention is without merit.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.
