| AMCAT Global, Inc. v Greater Binghamton Dev.,LLC |
| 2016 NY Slip Op 04491 [140 AD3d 1370] |
| June 9, 2016 |
| Appellate Division, Third Department |
[*1]
| AMCAT Global, Inc., Respondent, v GreaterBinghamton Development, LLC, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Menter, Ruden & Trivelpiece, PC, Syracuse (Michael J. Balestra of counsel),for respondent.
Clark, J. Appeals (1) from an order of the Supreme Court (Reynolds Fitzgerald, J.),entered March 16, 2015 in Broome County, upon a decision of the court in favor ofplaintiff, (2) from an order of said court, entered May 21, 2015 in Broome County, whichgranted plaintiff's motion for prejudgment interest, and (3) from the judgment enteredthereon.
In December 2010, a 12-story commercial edifice, known as the Press Building inthe City of Binghamton, Broome County and owned by defendant, sustained severewater damage after a nearby fire triggered the building's sprinkler system. Defendanthired plaintiff to perform remediation work on the building. Although plaintiff provideddefendant with a written agreement and rate sheets, no written contract was everexecuted. The parties, however, executed an authorization to perform services, whichallowed plaintiff to work on the building and permitted defendant's insurance carrier topay plaintiff directly with insurance proceeds for its services.
Plaintiff commenced the remediation work in December 2010 and, in January 2011,received a $350,000 advance payment from defendant's carrier. Defendant subsequentlyaltered the arrangement with its carrier such that its endorsement would be required onany further checks issued to plaintiff. Plaintiff thereafter received two more payments forits work. In June 2011, plaintiff learned that defendant's carrier would not compensateplaintiff for any more of its services until defendant made certain payments out of its ownpocket. Later that month, plaintiff removed its personnel and equipment from thebuilding and submitted invoices for the money [*2]owedfor its work. In July 2011, defendant reached a global settlement with its carrier and thelatter thereafter approved plaintiff's outstanding invoices and issued a final check in theamount of $952,457.81. Defendant, however, disputed the value of plaintiff's work andrefused to endorse the final check. Less that disputed amount, the total that defendant hadpaid to plaintiff throughout the project was $1,840,373.59.
Plaintiff commenced this action, which sounds in, among other things, breach ofcontract, seeking to recover the proceeds from the last check. Defendant joined issue andcountersued on, among other things, the theory that the proper measure of plaintiff'srecovery is in quantum meruit.[FN1] What began as a jury trial was laterconverted by stipulation into a bench trial, at the conclusion of which Supreme Courtfound that the parties' course of conduct established the existence of an implied-in-factcontract, which defendant breached by failing to pay plaintiff the disputed sum. In aseparate decision and order, the court awarded prejudgment interest to plaintiff. Ajudgment was thereafter entered upon the orders of the court. Defendant appeals from thejudgment, as well as the orders.
We affirm. "Where, as here, there is no written contract between the parties, acontract may be implied in fact where inferences may be drawn from the facts andcircumstances of the case and the intention of the parties as indicated by their conduct"(Yankee Lake Preserv. Assn.,Inc. v Stein, 68 AD3d 1603, 1604 [2009] [internal quotation marks and citationsomitted], lv denied 15 NY3d 706 [2010]; see Jemzura v Jemzura, 36NY2d 496, 503-504 [1975]; Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Mkts.,Inc., 127 AD3d 1319, 1320-1321 [2015]). Whether an implied-in-fact contractexists will often depend on the credibility of the witnesses and its assessment by the trierof fact (see Matter of Hanley, 18 AD2d 746, 747 [1962]; 22A NY Jur 2d,Contracts § 606). When a trial court makes a factual determinationfollowing a nonjury trial, this Court's "obligation is to independently review the weightof the evidence and . . . grant the judgment warranted by the record, whileaccording due deference to the trial [court's] factual findings particularly where. . . they rest largely upon credibility assessments" (Deep v Boies, 121 AD3d1316, 1319 [2014] [internal quotation marks and citation omitted], lv denied25 NY3d 903 [2015]; seeWeinberger v New York State Olympic Regional Dev. Auth., 133 AD3d 1006,1007 [2015]).
There is no dispute that defendant hired plaintiff to perform remediation services onthe building and that, between December 2010 and June 2011, plaintiff performed suchwork and billed defendant, who, in turn, accepted said services and paid over $1.8million for the services provided. Defendant, however, contends that there was nomeeting of the minds. Defendant believed that there was an agreement for plaintiff's feesto be capped at $1.8 million and complained about plaintiff's billing practices, whereasplaintiff was convinced that the agreement was open-ended and based on time andmaterials.
For a contract to be implied in fact, there indeed "must be proof of a meeting of theminds" (I.G. Second GenerationPartners, L.P. v Duane Reade, 17 AD3d 206, 208 [2005]; see DG & A Mgt. Servs., LLCv Securities Indus. Assn. Compliance & Legal Div., 52 AD3d 922, 923[2008]). It has long been established that "[a] meeting of the minds may be inferred from[the parties'] acts as well as words" (Young v United States Mtge. & TrustCo., 214 NY 279, 287 [1915]; see Berlinger v Lisi, 288 AD2d 523, 524[2001]). " '[W]hether a contract has been formed does not depend on eitherparty's subjective intent' " (Coca-Cola Refreshments, USA, Inc. vBinghamton Giant Mkts., Inc., 127 AD3d at 1323, quoting Brighton Inv., Ltd. vHar-Zvi, 88 [*3]AD3d 1220, 1222 [2011]). Here,defendant failed to demonstrate the existence of an agreement capping plaintiff's fees at$1.8 million. Plaintiff's principal and project manager both testified that they adviseddefendant that the cost of the remediation project could be between $1 million and $3million, depending on the actual scope of the work. In addition, a senior adjustor ofdefendant's carrier testified that he did not recall any discussions with defendant'srepresentatives regarding a price cap and that, if there ever was one, it would have beendocumented.[FN2]
As to the billing disputes, the record reveals that, while defendant's principalscomplained to plaintiff about its billing practices, they continued to accept and pay forplaintiff's services, endorsed the third check—albeit with areservation—that brought plaintiff over the purported $1.8 million threshold andenthusiastically recommended plaintiff's services to friends. The evidence furtherestablished that the parties entered into a time-and-materials contract, although towardsthe end, per defendant's request, plaintiff began billing defendant on a square-footagebasis. The proof also revealed that plaintiff provided defendant with rate sheets inadvance of commencing work on the project and thereafter billed defendant inaccordance with those rates. Defendant's carrier advised defendant that plaintiff's billingrates and practices were "more than reasonable" and "maybe a little lower than industrystandard in the area." Defendant's attempts to derogate plaintiff's billing practices, use ofnonlocal labor and certain equipment were refuted by plaintiff's witnesses and were metwith effective cross-examination establishing that the billings were credible and reflectedthe work performed, that the local labor available lacked the proper certifications andthat defendant was billed to the extent that equipment was actually used (see generally CIR Elec. Constr.Corp. v Black Cr. Integrated Sys. Corp., 8 AD3d 999, 1000 [2004]). Althoughdefendant produced an expert, his opinion failed to consider the nature of the parties'arrangement, his calculations were incorrect and he was unaware of the scope ofplaintiff's work. Thus, Supreme Court was justified in disregarding this expert'stestimony in its entirety (see Mohen v Mooney, 205 AD2d 670, 672 [1994];Rosenberg v Rosenberg, 155 AD2d 428, 430 [1989]).
In sum, we conclude that "Supreme Court's factual findings comport with a fair andreasonable interpretation of the evidence" and, therefore, decline to disturb them (Chase Manhattan Bank vDouglas, 61 AD3d 1135, 1136 [2009]; see Matter of Boice, 226 AD2d908, 910-911 [1996]). Defendant's remaining arguments, to the extent not specificallyaddressed herein, have been considered and found to be lacking in merit.
Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur. Ordered that the orders andjudgment are affirmed, with costs.
Footnote 1:The two actions wereeventually consolidated.
Footnote 2:Notably, defendantconceded in its written summation that it had failed to prove the $1.8 million cap at trial.