| Snitovsky v Forest Hills Orthopedic Group, P.C. |
| 2007 NY Slip Op 07835 [44 AD3d 845] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Peter Snitovsky, Respondent, v Forest Hills OrthopedicGroup, P.C., Appellant. |
—[*1] Kern Augustine Conroy & Schoppmann, P.C., Lake Success, N.Y. (Edward R. Hopkins ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals, aslimited by its notice of appeal and brief, from so much of an order of the Supreme Court, QueensCounty (Rosengarten, J.), dated August 22, 2006, as denied those branches of its motion whichwere pursuant to CPLR 3211 (a) (7) to dismiss so much of the second cause of action as soughtto recover compensatory damages and to dismiss the third and fourth causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a physician, commenced this action, inter alia, to recover damages for breach ofcontract. The plaintiff alleged that he performed services for the defendant orthopedic group fromSeptember 1, 2003 until June 27, 2005, but either was not compensated or not fully compensatedfor such services. For the period between September 1, 2003 and August 31, 2004, the plaintiffalleged that he performed such services pursuant to a written agreement with the defendant. Forall other relevant periods, he alleged that he performed services pursuant to an oral agreement.Prior to answering, the defendant moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss thesecond, third, and fourth causes of action. The second cause of action sought to recovercompensatory and punitive damages for breach of the implied covenant of good faith and fairdealing. The third cause of action sounded in quantum meruit and the fourth cause of actionalleged unjust enrichment. The Supreme Court granted that branch of the motion which was todismiss so [*2]much of the second cause of action as sought torecover punitive damages, but denied those branches of the motion which were to dismiss somuch of the second cause of action as sought to recover compensatory damages and to dismissthe third and fourth causes of action. We affirm.
Accepting the allegations of the pleadings as true, and giving the plaintiff the benefit of everypossible favorable inference, the plaintiff adequately alleged causes of action to recover damagesfor breach of the implied covenant of good faith and fair dealing (see New York Univ. vContinental Ins. Co., 87 NY2d 308 [1995]; Dalton v Educational Testing Serv., 87NY2d 384 [1995]; 1-10 Indus. Assoc. v Trim Corp. of Am., 297 AD2d 630 [2002]), inquantum meruit (see Sperry v CromptonCorp., 8 NY3d 204 [2007]), and for unjust enrichment (see Cruz v McAneney, 31 AD3d54 [2006]). Contrary to the defendant's contention, these equitable causes of action need notbe dismissed because there existed a written agreement between the parties (seeClark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388-389 [1987]). Rather, some ofthe compensation demanded was allegedly earned outside of the scope of the parties' writtenagreement (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d at 382).
The defendant's remaining contentions are without merit. Ritter, J.P., Santucci, Florio andDillon, JJ., concur.