Opinion
152916/2015
03-22-2018
PALMA REALTY ASSOCIATES LTD., Plaintiff, v. BLDG OCEANSIDE LLC, Master Development, Inc., doing business as Ross Ramsey Excavation and Concrete, Defendants.
Kathleen R. Bradshaw, 3114 East Tremont Ave., Bronx, NY 10461, Attorney for Plaintiff Lawrence P. Wolf, 6 Hemlock Hills, Chappaqua, NY 10514, Attorney for Defendant Bldg Oceanside LLC: Steven W. Kaiser, 134 Hawthorne Ave., Floral Park, NY 11001, Attorney for defendant Master Development d/b/a Ross Ramsey Excavation and Concrete
Kathleen R. Bradshaw, 3114 East Tremont Ave., Bronx, NY 10461, Attorney for Plaintiff
Lawrence P. Wolf, 6 Hemlock Hills, Chappaqua, NY 10514, Attorney for Defendant Bldg Oceanside LLC:
Steven W. Kaiser, 134 Hawthorne Ave., Floral Park, NY 11001, Attorney for defendant Master Development d/b/a Ross Ramsey Excavation and Concrete
Carmen Victoria St. George, J.
In this lawsuit, plaintiff Palma Realty Associates Ltd. (Palma) seeks to recover money allegedly due to it for work it performed on a construction project. Defendant Bldg Oceanside LLC (Oceanside) is the owner of the premises. Oceanside entered into a primary construction contract with AARK Inc. (AARK). AARK subcontracted with defendant Master Development, Inc. d/b/a Ross Ramsey Excavation and Concrete (Master Development), and Master Development signed a subcontract with Palma pursuant to which Palma was to supply building, construction, and excavation machinery and equipment for Master Development's use. Palma asserts that it was not paid the $97,430.00 due to it under its contract with Master Development. Its complaint originally asserted a first cause of action for a mechanic's lien and a second cause of action based on an account stated theory. Palma has since discontinued these causes of action. What remains is Palma's third cause of action, which is based on breach of contract or quasi-contract. Both defendants have answered the complaint.
Currently before the Court is Oceanside's motion to dismiss the remainder of the complaint as against it. Oceanside argues that dismissal is proper because there is no contract between itself and Palma, and because the existence of a contract between Palma and Master Development bars quantum meruit liability against Oceanside as owner. It cites cases such as Eastern States Electrical Contractors v. William L Crow Construction Co. (153 AD2d 522, 522 [1st Dept 1989] ) and Braun Equipment v. Meli Borelli Associates (220 AD2d 312, 312 [1st Dept 1995] ) for the proposition that the lack of privity between the owner and subcontractor bars a breach of contract claim. Citing Clark–Fitzpatrick Inc. v. Long Island Rail Road Co. (70 NY2d 382, 388 [1987] ), Further, Oceanside states, Palma's contract with Master Development bars any quasi-contractual claim (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.
The Court need not discuss the motion as it relates to the discontinued causes of action.
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.
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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 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.