| ADCO Elec. Corp. v HRH Constr., LLC |
| 2009 NY Slip Op 04365 [63 AD3d 653] |
| June 2, 2009 |
| Appellate Division, Second Department |
| ADCO Electrical Corporation, Respondent, v HRHConstruction, LLC, et al., Appellants. |
—[*1] Murtagh, Cohen & Byrne, Rockville Centre, N.Y. (Edward T. Byrne and Joel B. Cutler ofcounsel), for respondent.
In a consolidated action, inter alia, to recover damages in quantum meruit for servicesrendered, the defendants appeal from a judgment of the Supreme Court, Westchester County,(Nastasi, J.), entered August 1, 2007, which, upon a jury verdict, is in favor of the plaintiff andagainst them in the principal sum of $393,469.75.
Ordered that the judgment is affirmed, with costs.
In this consolidated action, the plaintiff ADCO Electrical Corporation (hereinafter ADCO),an electrical subcontractor, alleges that the defendant general contractor George A. FullerCompany, Inc. (hereinafter GAFCO), the defendant construction manager HRH Construction,LLC (hereinafter HRH), and the defendant property owner LC White Plains, LLC (hereinafterLC and collectively with HRH and GAFCO, the defendants) were obligated to pay it forelectrical work it performed on the White Plains City Center project and the adjoiningPerforming Arts Center (hereinafter PAC) project in White Plains. The matter proceeded to ajury trial in the Supreme Court, where the principal issue concerned the allocation of $1,454,807in payments ADCO had been paid for both projects. On appeal, the only dispute concernspayments ADCO alleges it was owed on the PAC project. As to that project, ADCO alleged thatits $685,000 fixed-price subcontract for the PAC project was not enforceable since a prior noticeof intent sent to it by HRH clearly stated that the parties would be governed by a formal contract,which none of the defendants [*2]ever executed. ADCOaccordingly sought to recover, on a quantum meruit basis, the sum of $1,267,675.75 for unpaidwork it had performed on the PAC project. In pertinent part, over the defendants' objection, thetrial court instructed the jury that, as a matter of law, no enforceable contract existed betweenADCO and GAFCO for the PAC project, and that the jury could calculate ADCO's damages asto that project, if any, on a quantum meruit basis. The jury thereafter returned a verdict findingthat ADCO was entitled, in quantum meruit, to the principal sum of $393,469.75 for the PACproject. Thereafter, judgment was entered in favor of ADCO and against the defendants in thatprincipal sum. We affirm.
"[I]f the parties to an agreement do not intend it to be binding upon them until it is reducedto writing and signed by both of them, they are not bound and may not be held liable until it hasbeen written out and signed" (Scheck v Francis, 26 NY2d 466, 469-470 [1970]; seeLost Cr. Assoc. v Marine Midland Bank, 293 AD2d 719 [2002]). Moreover, when theparties' intent to be bound by a contractual obligation "is determinable by written agreements, thequestion is one of law" (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32NY2d 285, 291 [1973]; see Berghold v Kirschenbaum, 287 AD2d 673 [2001]). Aquestion of fact arises as to the parties' intent to enter into an enforceable obligation "[o]nlywhere the intent must be determined by disputed evidence or inferences outside the writtenwords of the instrument" (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32NY2d at 291; see Ashland Mgt. v Janien, 82 NY2d 395, 401 [1993]; Atria Assoc. vCounty of Nassau, 181 AD2d 847, 851 [1992]). Here, the notice of intent sent by HRH toADCO clearly states, in pertinent part: "This will constitute a notice of our intent to awardyou a contract for the Electrical Work at the [PAC] for the total sum of: . . .$685,000.00. This agreement is in accordance with drawings . . . dated 6/10/03 asprepared by Enviro Design, Inc., . . . and is subject to the execution of a formalcontract by [GAFCO], to follow" (emphasis added). The plain language of the notice ofintent unambiguously demonstrates that the parties did not intend to be bound until execution ofa formal contract (see Scheck v Francis, 26 NY2d at 469-470; Wallkill Med. Dev., LLC v SweetConstructors, LLC, 56 AD3d 764, 765 [2008]; Pelham Commons Joint Venture vVillage of Pelham, 308 AD2d 520, 521 [2003]; Lost Cr. Assoc. v Marine MidlandBank, 293 AD2d 719 [2002]; Silverite Constr. Co. v Montefiore Med. Ctr., 239AD2d 336 [1997]).
Moreover, there is no evidence that a binding obligation arose by virtue of the fact that theparties agreed to all contractual terms and only failed to execute the contract (see Matter ofMunicipal Consultants & Publs. v Town of Ramapo, 47 NY2d 144, 148-149 [1979]).Instead, although it signed the contract, ADCO proposed several material modifications, whichconstituted its rejection of the proposed contract, and a counteroffer (see Winiarski v Duryea Assoc., LLC,14 AD3d 697 [2005]; Credit Suisse First Boston Corp. v Cooke, 284 AD2d 365[2001]). Further, the evidence adduced at trial demonstrates that in subsequent negotiations,HRH rejected ADCO's proposed modifications to certain material terms, such as labor rates forpremium, extra, or additional work performed by ADCO. Thus, the trial court correctlydetermined, as a matter of law, that no binding contract governed ADCO's work on the PACproject (see Scheck v Francis, 26 NY2d at 469-470; Wallkill Med. Dev., LLC vSweet Constructors, LLC, 56 AD3d at 765; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d530 [2007]; Lost Cr. Assoc. v Marine Midland Bank, 293 AD2d 719 [2002];Donaldson Acoustics Co. v NAB Constr. Corp., 273 AD2d 192 [2000]; SilveriteConstr. Co. v Montefiore Med. Ctr., 239 AD2d 336 [1997]).
The defendants' remaining contention is without merit. Skelos, J.P., Fisher, Belen and Lott,JJ., concur.