Opinion
November 10, 1997
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the appeal and cross appeal from the decision are dismissed, as no appeal or cross appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, the words "does recover of the defendants, Anthony Doganis and Ydrohoos-Aquarius, Inc., and each of them jointly and severally, the sum of $57,600" are deleted from the first decretal paragraph and the phrase "does recover of the defendant Ydrohoos-Aquarius, Inc., the sum of $57,500" is substituted therefor, and the plaintiff's second cause of action against the defendant Anthony Doganis is dismissed; and it is further,
Ordered that the cross appeal from the judgment is dismissed as academic; and it is further,
Ordered that the defendant Anthony Doganis is awarded one bill of costs.
The plaintiff entered into a contract with the defendant Ydrohoos-Aquarius, Inc. (hereinafter Ydrohoos), for the performance of renovation work on premises owned by the defendant Anthony Doganis and leased by Ydrohoos. The plaintiff performed some of the work, but Ydrohoos never paid it, claiming that the work was not performed satisfactorily. The plaintiff filed a mechanic's lien on the premises, and thereafter commenced this action against, among others, the landlord Doganis, seeking recovery for the goods and services that the plaintiff provided on the premises.
After a nonjury trial, the court concluded, inter alia, that since the landlord Doganis "received benefit from the work, labor, services and materials" provided by the plaintiff, the plaintiff was entitled to judgment against Doganis on the cause of action sounding in unjust enrichment. We disagree.
It is well settled that in order to recover under a theory of quasi contract, a plaintiff must be able to prove that performance was rendered for the defendant, resulting in unjust enrichment. It is not sufficient to show that the defendant consented to the improvements provided by the plaintiff or received a benefit from the plaintiff's activities ( see, Outrigger Constr. Co. v. Bank Leumi Trust Co., 240 A.D.2d 382; Metropolitan Elec. Mfg. Co. v. Herbert Constr. Co., 183 A.D.2d 758; Kagan v. K-Tel Entertainment, 172 A.D.2d 375; Henske Sons v. Cold Spring Holding Corp., 39 A.D.2d 769; Ellis Chingos Constr. Corp. v. Carlton Props., 30 Misc.2d 883). Inasmuch as the plaintiff contracted only with Ydrohoos, and there was no proof in the record that the landlord Doganis assumed an obligation to pay for the goods and services provided by the plaintiff, the cause of action against Doganis based on unjust enrichment should have been dismissed.
Finally, as the cross appeal involves the issue of the date from which interest should run on the damages awarded on the unjust enrichment claim against Doganis, it is dismissed as academic because we have dismissed the complaint insofar as it is asserted against Doganis.
Ritter, J. P., Friedmann, Krausman and McGinity, JJ., concur.