I. Papers The following papers were read on Plaintiff’s motion for summary judgment on its claims: Papers Numbered Plaintiff’s Notice of Motion and Affirmation dated June 23, 2021 (“Motion”) and electronically filed with the court on July 1, 2021. 1 Defendant’s Affirmation in Opposition dated June 28, 2021 (“Opposition”) and electronically filed with the court on July 6, 2021. 2 Reply Affirmation dated September 3, 2021 (“Reply”) and stamped filed with the court on September 23, 2021. 3 DECISION AND ORDER II. Background In a summons and complaint filed January 21, 2020, Plaintiff sued Defendant to recover $16,517.80 in damages from Defendant’s failure to pay, under an agreement (the “Agreement”) dated February 15, 2018 between the Defendant and the Plaintiff, asserting claims for breach of contract, account stated, unjust enrichment, and quantum meruit, and $4,129.45 in attorneys’ fees (see Motion, Aff. of Biondo, Ex. A). Plaintiff moved for summary judgment on its claims against Defendant. Defendant opposed Plaintiff’s motion. III. Discussion The $16,517.80 Plaintiff sought to recover arose from change orders and service calls arising from the work under the Agreement. A claim may arise based on quantum meruit when there is no agreement on a price or fixed price for services and goods provided, or parties agree to pay reasonable amount of money for services and goods provided, or parties have agreed upon the scope of work, however, the work actually performed is outside of the scope of work as originally stipulated (See Chapter 32 of Chitty on Contracts, Vol 1, Sweet & Maxwell, 34th ed, 2021). To prevail in a quantum meruit claim, a plaintiff must establish “(1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered” (F & M General Contr. v. Oncel, 132 AD3d 946, 948; see Crown Constr. Bldrs. & Project Mgrs. Corp. v. Chavez, 130 AD3d 969, 971; Zere Real Estate Servs., Inc. v. Parr Gen. Contr. Co., Inc., 102 AD3d 770, 772; Tesser v. Allboro Equip. Co., 73 AD3d 1023, 1026). It is well established, however, that a “party may not recover in quantum meruit or unjust enrichment where the parties have entered into a contract that governs the subject matter” (Pappas v. Tsolis, 20 NY3d 228, 234 [2012]; Cox v. NAP Constr. Co., Inc., 10 NY3d 592, 607 [2008]; ISS Action, Inc. v. Tutor Perini Corp., 170 AD3d 686, 690 [2d Dept 2019]). Here, Plaintiff will not prevail under the quantum meruit claim because parties had an Agreement addressing the subject matter. In order for a party to recover under an account stated theory, it requires a showing that the parties to a contract reached an express or implied agreement based on their prior dealings regarding the correctness of items of account and the balance due on them independent of the original obligation (Caring Professionals, Inc. v. Landa, 152 AD3d 738, 739 [2d Dept 2017], see Styles Brook Homeowners’ Assn. v. Blasi, 165 AD3d 1004, 1005 [2d Dept 2018]). Here, Plaintiff relied on invoices addressed to “Cook & Krupa LLC” (see Motion, Biondo Aff. Ex. D and E). Although the Agreement indicated that Cook & Krupka LLC was the Construction Manager (the “Construction Manager”), Section 16.03[b] of the Agreement required all communications to be sent to both the Defendant at a specified address and Cook & Krupka LLC, the Construction Manager. Plaintiff failed to demonstrate that the invoices purportedly sent to Cook & Krupka LLC, the Construction Manager, were also sent to the Defendant as required by the Agreement. Thus, Plaintiff failed to demonstrate an agreement with Defendant respecting the amount due to establish an account stated (Styles Brook Homeowners’ Assn. v. Blasi, 165 AD3d at 1005; Caring Professionals, Inc. v. Landa, 152 AD3d at 739, see Episcopal Health Servs., Inc. v. POM Recoveries, Inc., 138 AD3d 917, 919 [2d Dept 2016]). Here, Plaintiff may not recover under an account stated theory. In any event, in opposition, Defendant presented the affidavit of Ebenstein, Defendant’s property manager, in which he disputed the amount due via email on July 3, 2019, which raised factual issues rebutting Plaintiff’s claim of an agreement as to the amounts due. Finally, even if the invoices Plaintiff submitted to support its claim that Defendant owed for change orders and service calls met Plaintiff’s initial burden, Defendant raised factual issues requiring trial by pointing out provisions in the Agreement which required Plaintiff to provide to the Construction Manager with a written statement containing information about the additional work, written notice to Defendant or the Construction Manager that Plaintiff was directed to perform additional work, that failure to provide notice waived payment for the additional work, and that failure to obtain authorization for work outside the work described in the Agreement would be performed at Plaintiff’s sole risk (see Motion, Biondo Aff., Ex. C at 12-14). While two of the invoices appeared to indicate acceptance of the work by the Construction Manager’s project manager D’Antonio, absent authentication of his signature, Plaintiff failed to present admissible evidence that the Construction Manager authorized the work (see Andreyeva v. Haym Solomon Home for the Aged, LLC, 190 AD3d 801, 802 [2d Dept 2021]; NYCTL 1998-2 Trust v. Santiago, 30 AD3d 572, 573 [2d Dept 2006]). CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions…” (CPLR 3212 [b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A [party] moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v. Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d at 968). Here, factual issues remain; and Plaintiff failed to establish it’s prima facie case. Therefore, the Court denies Plaintiff’s Motion. IV. Order Accordingly, it is ORDERED that Plaintiff’s motion for summary judgment is denied. This constitutes the Decision and Order of the court. Dated: October 24, 2022
