| Elbroji v 22 E. 54th St. Rest. Corp. |
| 2009 NY Slip Op 08779 [67 AD3d 957] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Hafid Elbroji, Respondent, v 22 East 54th StreetRestaurant Corp. et al., Appellants. |
—[*1] Jimmy C. Solomos, Astoria, N.Y. (Niranjan G. Sagapuram of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract and unjust enrichment, andto recover in quantum meruit for services rendered, the defendants appeal from so much of anorder of the Supreme Court, Queens County (Nelson, J.), dated November 17, 2008, as deniedthose branches of their motion which were pursuant to CPLR 3211 to dismiss the first, second,and fourth causes of action in the amended complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendants' contention, the amended complaint adequately states a cause ofaction to recover damages for breach of contract. Although the plaintiff signed a shareholders'agreement containing a merger clause, that agreement does not cover the subject dispute, as itdoes not specifically address the issue of compensation to be paid to the plaintiff for the allegedlabor and services he rendered in connection with the renovation and construction of arestaurant. Thus, the plaintiff may present evidence to prove the existence of an alleged oralagreement between the parties in 2005 to pay him the sum of $2,800 per week during therenovation and construction project, as such proof would not contradict or modify the terms ofthe shareholders' agreement (see Matter of Primex Intl. Corp. v Wal-Mart Stores, 89NY2d 594, 601 [1997]; cf. DePasqualev Estate of DePasquale, 44 AD3d 606 [2007]; Friends of Avalon Preparatory School v Ehrenfeld, 6 AD3d 658[2004]).
The amended complaint also adequately states causes of action sounding in unjustenrichment and quantum meruit. "Where, as here, there is a bona fide dispute as to the existenceof a contract, or where the contract does not cover the dispute in issue, a plaintiff may proceedupon a theory of quasi-contract as well as breach of contract, and will not be required to elect hisor her remedies" (Hochman vLaRea, 14 AD3d 653, 654-655 [2005]; see also AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6[2008]; Zuccarini v Ziff-Davis Media, 306 AD2d 404 [2003]). Mastro, J.P., Miller,Angiolillo and Austin, JJ., concur.