Opinion
2011-12-23
LEO J. ROTH CORPORATION, Plaintiff–Respondent, v. TRADEMARK DEVELOPMENT CO., INC., Legacy at Erie Station LLC, U.S. Homes Co., Inc., Legacy at Fairways LLC, and Mark IV Construction Co., Inc., Defendants–Appellants. (Appeal No. 2.)
Gates & Adams, P.C., Rochester (Anthony J. Adams, Jr., of Counsel), for Defendants–Appellants. Harris Beach PLLC, Pittsford (David J. Edwards of Counsel), for Plaintiff–Respondent.
Gates & Adams, P.C., Rochester (Anthony J. Adams, Jr., of Counsel), for Defendants–Appellants. Harris Beach PLLC, Pittsford (David J. Edwards of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff, a heating, ventilation and air conditioning (HVAC) subcontractor, commenced this action seeking damages resulting from defendants' alleged failure to pay plaintiff in full for its work on two construction projects, i.e., Legacy at Erie Station (Erie Station project) and Legacy at Fairways (Fairways project). Defendant Trademark Development Co., Inc. (Trademark) was the general contractor and defendant Legacy at Erie Station, LLC was the owner of the Erie Station project, and defendant U.S. Homes Co., Inc. (U.S. Homes) was the general contractor and defendant Legacy at Fairways, LLC was the owner of the Fairways project. Defendant Mark IV Construction Co., Inc. (Mark IV) is the assignee of both HVAC subcontracts awarded to plaintiff by the general contractors.
Supreme Court erred in granting, with the exception of the claim for compensation for extra work, that part of plaintiff's motion seeking summary judgment on the first cause of action alleging breach of the subcontract with Trademark, and in granting those parts of the motion seeking dismissal of the first affirmative defense and counterclaim alleging plaintiff's breach of that subcontract. We therefore modify the judgment accordingly. The subcontract provides, inter alia, for plaintiff's work to be performed in accordance with the plans and specifications prepared by the Erie Station project's engineering firm and the standards and guidelines for the New York State Energy Research and Development Authority (NYSERDA) incentive certification obtained by Trademark. In support of its motion, however, plaintiff failed to submit the engineering plans and specifications or the NYSERDA certification, and thus failed to establish its compliance therewith ( see generally Mentesana v. Bernard Janowitz Constr. Corp., 36 A.D.3d 769, 771, 828 N.Y.S.2d 522; Arbatosky v. Herman, 28 A.D.3d 1241, 1242, 814 N.Y.S.2d 451). In particular, by failing to submit those documents plaintiff failed to establish that the heat pumps it installed at Erie Station complied with the pertinent requirements set forth in the subcontract at the time it was executed.
We reach a different conclusion with respect to the fourth cause of action, alleging breach of the subcontract between plaintiff and U.S. Homes for the Fairways project. The court properly granted those parts of plaintiff's motion seeking summary judgment on that cause of action and seeking dismissal of the second affirmative defense and counterclaim, alleging plaintiff's breach of that subcontract. Plaintiff met its initial burden on those parts of the motion by establishing the relevant terms of that subcontract, plaintiff's performance thereof and the failure of U.S. Homes to pay the full amount due under that subcontract ( see North Cent. Mech., Inc. v. Hunt Constr. Group, Inc., 43 A.D.3d 1396, 1397, 843 N.Y.S.2d 894, lv. dismissed 9 N.Y.3d 1029, 852 N.Y.S.2d 12, 881 N.E.2d 1199). In opposition, defendants failed to raise a triable issue of fact with respect to the fourth cause of action or the merits of the second affirmative defense and counterclaim ( see generally Pando v. Tapia, 79 A.D.3d 993, 995, 914 N.Y.S.2d 226; NYCTL 1998–2 Trustee v. 2388 Nostrand Corp., 69 A.D.3d 594, 595, 892 N.Y.S.2d 188).
The court erred, however, in granting those parts of plaintiff's motion seeking summary judgment on the remaining causes of action, and we therefore further modify the judgment accordingly. The second, third, fifth and sixth causes of action, seeking recovery under the theories of unjust enrichment or quantum meruit, are duplicative of the breach of contract causes of action, and thus recovery under those theories is barred by the existence of the valid and enforceable subcontracts ( see Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572, 807 N.Y.S.2d 583, 841 N.E.2d 742; Clark–Fitzpatrick v. Long Is. R.R. Co., 70 N.Y.2d 382, 388–389, 521 N.Y.S.2d 653, 516 N.E.2d 190; CFI Constr., Inc. v. Central Sq. Cent. School Dist., 34 A.D.3d 1354, 1355, 824 N.Y.S.2d 843). The court also erred in granting in its entirety that part of plaintiff's motion seeking summary judgment on the seventh cause of action and granting, with the exception of the claim for compensation for extra work, that part of plaintiff's motion seeking summary judgment on the eighth cause of action. We thus additionally modify the judgment accordingly. Plaintiff failed to meet its burden with respect to those causes of action, which are each for an account stated. “Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent, in light of all the circumstances presented, is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible” ( Legum v. Ruthen, 211 A.D.2d 701, 703, 621 N.Y.S.2d 649). We conclude, in light of all the circumstances presented, that more than one inference is rationally possible on the issue whether an account stated may be found based upon the retention of plaintiff's invoices, thus precluding summary judgment on that issue ( see Yannelli, Zevin & Civardi v. Sakol, 298 A.D.2d 579, 580–581, 749 N.Y.S.2d 270).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying in their entirety those parts of plaintiff's motion seeking summary judgment on the first through third and fifth through eighth causes of action, and by denying those parts of plaintiff's motion seeking dismissal of the first affirmative defense and counterclaim and reinstating that affirmative defense and counterclaim, and as modified the judgment is affirmed without costs.