| Capital Heat, Inc. v Buchheit |
| 2007 NY Slip Op 10295 [46 AD3d 1419] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Capital Heat, Inc., Respondent, v Gerald A. Buchheit, Jr.,Appellant. (Appeal No.1.) |
—[*1] Robert R. Radel, Buffalo, for plaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County(Christopher J. Burns, J.), entered June 1, 2006. The order and judgment, following a nonjurytrial, awarded plaintiff the sum of $9,540 plus interest and costs against defendant.
It is hereby ordered that the order and judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging that defendant failed to pay for theheating and cooling services that it performed at his residence. Defendant appeals from an orderand judgment awarding plaintiff, following a nonjury trial, the principal sum of $9,540. Contraryto the contention of defendant, the complaint sufficiently placed him on notice that plaintiff wasseeking recovery based upon quantum meruit, rather than breach of contract, by alleging thatdefendant owed plaintiff the reasonable price and value of the heating and cooling services(see Clark v Torian, 214 AD2d 938 [1995]). Consequently, the absence of a writtenagreement between plaintiff and defendant does not bar recovery in quantum meruit (see Precision Founds. v Ives, 4 AD3d589, 591 [2004]; Frank v Feiss, 266 AD2d 825 [1999]).
Also contrary to defendant's contention, Supreme Court's determination that plaintiffwas entitled to recover in quantum meruit from defendant for its services is supported by a fairinterpretation of the evidence (see generally Precision Founds., 4 AD3d at 591-592;Frank, 266 AD2d 825 [1999]). "In order to make out a cause of action in quantum meruitor quasi contract, a plaintiff must establish (1) the performance of services in good faith; (2) theacceptance of those services by the person to whom they are rendered; (3) an expectation ofcompensation therefor; and (4) the reasonable value of the services" (Landcom, Inc. vGalen-Lyons Joint Landfill Commn., 259 AD2d 967, 968 [1999]; see Heller v Kurz,228 AD2d 263, 264 [1996]). Here, defendant did not dispute that plaintiff performed the heatingand cooling work in good faith or that the work was of acceptable quality. By issuing invoices,plaintiff established an expectation that it would be paid for its services, and the invoicesestablished the reasonable value of those services (see Paul F. Vitale, Inc. v Parker's Grille, Inc., 23 AD3d 1147[2005], lv denied 6 NY3d 707 [2006]; United Bldg. Maintenance Assoc., Inc. v 510 Fifth Ave. LLC, 18 AD3d333 [2005]). We further reject the contention [*2]ofdefendant that plaintiff was a subcontractor of the general contractor hired by defendant toperform renovation work on his residence and that plaintiff therefore should have soughtpayment from the general contractor. Although "it is a firmly established principle that a propertyowner who contracts with a general contractor does not become liable to a subcontractor on aquasi contract theory unless it expressly consents to pay for the subcontractor's performance"(Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club, 156 AD2d 550, 551 [1989];see Contelmo's Sand & Gravel v J & J Milano, 96 AD2d 1090 [1983]), here, the partiespresented conflicting testimony on the issue whether defendant in fact hired a general contractoras opposed to a project manager. We conclude that a fair interpretation of the evidence supports afinding that defendant did not hire a general contractor (see R.G. Egan Equip., Inc. v Polymag Tek, Inc., 13 AD3d 1130[2004]). Present—Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ.