Opinion
2012-11-8
The SOUND BEYOND ELECTRICAL CORP., Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Robinson Brog PC, New York (Jennifer S. Smith of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Graham Morrison of counsel), for respondents.
Robinson Brog PC, New York (Jennifer S. Smith of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Graham Morrison of counsel), for respondents.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 7, 2011, which granted defendants' motion to dismiss pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, without costs.
We have previously stated—in a case involving the same contract provision as in the instant case—“The construction contract entered into between plaintiff and the City unambiguously precluded plaintiff from commencing a plenary action for damages upon a determination by the City that plaintiff had defaulted under the contract. Plaintiff's remedy was to commence a CPLR article 78 proceeding challenging the determination of default, which it failed to do” ( Cal–Tran Assoc., Inc. v. City of New York, 43 A.D.3d 727, 727, 841 N.Y.S.2d 445 [2007] ). We perceive no reason to depart from Cal–Tran ( see Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 381, 509 N.Y.S.2d 507, 502 N.E.2d 184 [1986] ).
It is true that Cal–Tran did not consider restitution, quantum meruit, unjust enrichment, or fraudulent misrepresentation. Nevertheless, those unpleaded claims are barred by Article 49.2, which precludes plaintiff from commencing a plenary action for any damages relating to the contract. In addition, the quasi-contract claims for restitution, quantum meruit, and unjust enrichment are barred by the existence of a valid contract between plaintiff and the City, covering the subject matter of their dispute ( see e.g. DePinto v. Ashley Scott, Inc., 222 A.D.2d 288, 289, 635 N.Y.S.2d 215 [1995];Grace Indus., Inc. v. New York City Dept. of Transp., 22 A.D.3d 262, 263, 802 N.Y.S.2d 409 [2005],lv. denied6 N.Y.3d 703, 811 N.Y.S.2d 336, 844 N.E.2d 791[2006] ).