| Henry Loheac, P.C. v Children's Corner Learning Ctr. |
| 2008 NY Slip Op 04275 [51 AD3d 476] |
| May 8, 2008 |
| Appellate Division, First Department |
| Henry Loheac, P.C., Respondent, v Children's CornerLearning Center et al., Appellants. |
—[*1] Paul B. Bercovici, Scarsdale, for respondent.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered April 11, 2007,which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismisscauses of action for an account stated, quantum meruit and unjust enrichment, unanimouslymodified, on the law, the claim for account stated limited to $25,815.27, and otherwise affirmed,without costs.
Plaintiff's allegations are supported by documentary evidence and easily withstandcontradiction by any extrinsic evidence submitted in support of defendants' motion. Plaintiff wasnot precluded from bringing an action for breach of contract and, as alternative theories, quantummeruit and unjust enrichment (see Ellis v Abbey & Ellis, 294 AD2d 168, 170 [2002],lv denied 98 NY2d 612 [2002]; Siegel, Practice Commentaries, McKinney's Cons Lawsof NY, Book 7B, CPLR C3002:5). There is a dispute as to the scope of work intended by theoriginal oral contract and whether plaintiff is owed money outside the scope of that agreement(see American Tel. & Util. Consultants v Beth Israel Med. Ctr., 307 AD2d 834 [2003]).
There is no merit to the argument that the claim for an account stated should be dismissed forlack of a timely demand for payment or rendering of account, as such assertions are refuted bythe evidence of record (see Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d355 [2001]). However, the claim for an account stated should be limited to $25,815.27, theamount demanded before the dispute over the work was made known; defendants' inaction hasraised an issue as to constructive assent.[*2]
We have considered defendants' other arguments and findthem unavailing. Concur—Lippman, P.J., Mazzarelli, Sweeny, Moskowitz and Renwick,JJ.