| Pulver Roofing Co., Inc. v SBLM Architects, P.C. |
| 2009 NY Slip Op 06288 [65 AD3d 826] |
| August 21, 2009 |
| Appellate Division, Fourth Department |
| Pulver Roofing Company, Inc., Appellant, v SBLM Architects,P.C., Respondent. |
—[*1] Law Offices of C. Jaye Berger, New York City, Kernan and Kernan, P.C., Utica (GregHamlin of counsel), for defendant-respondent.
Appeal from a judgment of the Supreme Court, Oneida County (Samuel D. Hester, J.),entered September 26, 2008. The judgment, insofar as appealed from, granted that part of themotion of defendant seeking dismissal of the amended complaint.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby denying that part of the motion seeking dismissal of the quantum meruit claim and reinstatingthat claim and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff entered into a contract with the Rome City School District (SchoolDistrict) pursuant to which plaintiff was to install a roof on a school in accordance with plansprovided by defendant architect. The School District was dissatisfied with the roof installed byplaintiff, and the parties and the School District subsequently entered into a settlement agreementwhereby plaintiff would perform certain remedial work in exchange for payment from an escrowaccount. Plaintiff thereafter commenced this action alleging that defendant had requested thatplaintiff perform additional work outside the scope of the remedial work set forth in thesettlement agreement but failed to pay plaintiff for that additional work, despite having promisedto do so. Defendant moved to dismiss the amended complaint for failure to state a cause ofaction and for the costs of bringing the motion, and Supreme Court granted that part ofdefendant's motion seeking dismissal of the amended complaint. We note at the outset that,although plaintiff took an appeal from a prior order determining the motion rather than from thesubsequent judgment in which that order was subsumed, we exercise our discretion to treatplaintiff's notice of appeal as valid and deem the appeal as taken from the judgment (seeHughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; see also CPLR 5520[c]).
We agree with plaintiff that the amended complaint states a valid quantum meruit claim, andwe therefore modify the judgment accordingly. The elements of such a claim are theperformance of services in good faith, the acceptance of the services by the party for whom theywere rendered, the expectation of compensation for those services, and a statement of the [*2]reasonable value of the services (see generally Capital Heat, Inc. vBuchheit, 46 AD3d 1419, 1420-1421 [2007]; Precision Founds. v Ives, 4 AD3d 589, 591 [2004]). Each of thoseelements is set forth in the amended complaint. We conclude that the court erred in determiningthat defendant could not accept plaintiff's additional work because that work was rendered forthe benefit of the School District rather than defendant. Although the court is correct that thework was in fact rendered for the benefit of the School District, plaintiff is not required toestablish that defendant received a benefit in order to recover in quantum meruit (see Eber-NDC, LLC v Star Indus.,Inc., 42 AD3d 873, 875-876 [2007]; Heller v Kurz, 228 AD2d 263, 264 [1996]).Here, plaintiff allegedly performed the work at defendant's behest, pursuant to an expresspromise that it would be paid, and plaintiff is entitled to recover "the reasonable value of [itswork] whether or not the defendant in any economic sense benefitted from the [work]"(Farash v Sykes Datatronics, 59 NY2d 500, 506 [1983]; see Heller, 228 AD2d at264).
Plaintiff's quantum meruit claim is not precluded by the existence of the settlementagreement. Although generally a contract covering a specified subject matter precludes recoveryin quasi contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388[1987]; Corcoran v GATX Corp.,49 AD3d 1174, 1175 [2008], lv dismissed 10 NY3d 909 [2008]), the quantummeruit claim in this case may proceed inasmuch as "there is a bona fide dispute" whether theadditional work was outside the scope of the Settlement Agreement (Fisher v A.W. MillerTech. Sales, 306 AD2d 829, 832 [2003]; see Goldman v Simon Prop. Group, Inc., 58 AD3d 208, 220[2008]; Schwartz v Pierce, 57AD3d 1348, 1352-1353 [2008], lv denied 12 NY3d 707 [2009]).Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.