| Seneca Pipe & Paving Co., Inc. v South Seneca Cent. SchoolDist. |
| 2009 NY Slip Op 04493 [63 AD3d 1556] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Seneca Pipe & Paving Co., Inc., Appellant, v SouthSeneca Central School District et al., Respondents, et al., Defendant. (Appeal No.1.) |
—[*1] Matthew R. Fletcher, Cayuga, for defendant-respondent South Seneca Central SchoolDistrict. Harris Beach PLLC, Pittsford (Laura W. Smalley of counsel), for defendant-respondentJaven Construction Company.
Appeal from an order of the Supreme Court, Seneca County (David Michael Barry, J.),entered August 24, 2007. The order, insofar as appealed from, granted those parts of the crossmotions of defendants South Seneca Central School District and Javen Construction Companyfor summary judgment dismissing the second amended complaint against them and denied thoseparts of plaintiff's cross motion for summary judgment with respect to those defendants.
Now, upon reading and filing the stipulation of settlement and discontinuance signed by theattorneys for plaintiff and defendant South Seneca Central School District on February 23, 2009,
It is hereby ordered that said appeal with respect to defendant South Seneca Central SchoolDistrict is unanimously dismissed upon stipulation and the order is otherwise affirmed withoutcosts.
Memorandum: These consolidated appeals arise from a construction project on propertyowned by defendant South Seneca Central School District (School District), pursuant to whichplaintiff was awarded the site work prime contract and defendant Javen Construction Co., Inc.,incorrectly sued as Javen Construction Company in appeal No. 1 (Javen), was awarded thegeneral trades prime contract. Plaintiff commenced the action at issue in appeal No. 1 seekingdamages for work performed pursuant to an alleged verbal agreement with one of Javen'ssubcontractors. In its second amended complaint, plaintiff asserted, inter alia, that Javen wasunjustly enriched, and Supreme Court, inter alia, granted that part of the cross motion of Javen[*2]for summary judgment dismissing the second amendedcomplaint against it and denied that part of plaintiff's cross motion for summary judgment withrespect to Javen. We affirm the order in appeal No. 1 for reasons stated in the decision atSupreme Court.
Plaintiff commenced the action at issue in appeal No. 3 alleging, inter alia, that it performedcertain work under protest because the work was not encompassed by its site work primecontract. The complaint in appeal No. 3 alleges against Javen that it was unjustly enrichedbecause it received payment for certain work pursuant to its prime contract for general tradeswork, but that work was in fact performed by plaintiff pursuant to its prime contract for sitework. Contrary to the contention of plaintiff in appeal No. 3, it is not entitled to recover fromJaven for unjust enrichment under these circumstances because "a nonsignatory to a contractcannot be held liable where there is an express contract covering the same subject matter"(Feigen v Advance Capital Mgt. Corp., 150 AD2d 281, 283 [1989], lv dismissed inpart and denied in part 74 NY2d 874 [1989]; see Bellino Schwartz Padob Adv. v SolarisMktg. Group, 222 AD2d 313 [1995]). Inasmuch as the "services were performed at thebehest of [an entity] other than th[is] defendant, the plaintiff must look to that [entity, i.e., theSchool District] for recovery" (Kagan v K-Tel Entertainment, 172 AD2d 375, 376[1991]; see Heller v Kurz, 228 AD2d 263, 264 [1996]). We thus conclude that the courtproperly granted the cross motion of Javen for summary judgment dismissing the complaint inappeal No. 3 against it (see generallyIDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 141-142 [2009]).Present—Scudder, P.J., Smith, Fahey, Carni and Pine, JJ.