| Daley v County of Erie |
| 2010 NY Slip Op 02200 [71 AD3d 1398] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Patrick L. Daley, Respondent, v County of Erie,Appellant. |
—[*1] Chiacchia & Fleming, LLP, Hamburg (Christen Archer Pierrot of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredJune 12, 2009 in a breach of contract action. The order, insofar as appealed from, denieddefendant's motion for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion for summary judgment is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action to recover damages for breach of contractand unjust enrichment, alleging that defendant was required to pay him for a suggestionsubmitted to its Employee Suggestion Program (Program). Defendant appeals from an order thatgranted plaintiff's motion to vacate the prior order granting defendant's motion for summaryjudgment dismissing the complaint. In addition, Supreme Court set forth in the order on appealthat it was denying the cross motion of defendant for leave to renew and reargue its prior motionfor summary judgment in the event that the court granted plaintiff's motion, and the court thenreached the merits of that prior motion and denied it. We conclude that the cross motion was, ineffect, only one seeking leave to reargue and that, despite the statement of the court to thecontrary, the court thus actually granted that part of defendant's cross motion for leave to reargueinasmuch as the court reached the merits of the prior motion. Because the court in effect grantedthat part of defendant's cross motion for leave to reargue, and upon reargument denieddefendant's prior motion, the order on appeal is properly before this Court (see Stevens vAuburn Mem. Hosp., 286 AD2d 965, 966 [2001]). We agree with defendant that the courterred in denying defendant's motion for summary judgment upon granting reargument becausedefendant met its burden on the motion for summary judgment and plaintiff failed to raise atriable issue of fact.
Under the terms of the Program as set forth in the materials disseminated to defendant'semployees, and as codified in a Local Law implementing the Program, "10% of 1st year costsavings [would be] awarded to [the] individual or team" that submitted any original suggestionthat provided "Departmental Cost Savings or Process Improvement" to defendant. Plaintiffsubmitted a suggestion that defendant impose a tax on vehicles that use defendant's road system,and he sought 10% of the revenues collected by defendant following the imposition of such atax. [*2]Even assuming, arguendo, that the parties entered into anagreement and that plaintiff submitted an original suggestion pursuant to the Program'srequirements, we conclude that defendant met its initial burden by establishing as a matter of lawthat plaintiff's suggestion did not generate any savings to defendant and therefore did not qualifyfor an award pursuant to the terms of the Program. Plaintiff's submissions in opposition to themotion did not identify any cost savings and, indeed, the only basis for the amount that plaintiffseeks in this action is the revenue collected pursuant to the tax. Black's Law Dictionary definesthe term "save" in relevant part as "[t]o preserve from danger or loss . . . [t]o lay up;to hoard . . . [t]o lessen or avoid (a cost, resource, etc.)" (id. at 1461 [9th ed2009]). Pursuant to that definition, the collection of an increased amount of funds, by itself, doesnot result in savings to defendant. Inasmuch as plaintiff is unable to identify any savings thatresulted from his suggestion, we conclude that the court erred, upon reargument, in denying thatpart of defendant's prior motion for summary judgment dismissing the breach of contract causeof action.
We further conclude that the court erred, upon reargument, in denying that part ofdefendant's prior motion for summary judgment dismissing the cause of action for unjustenrichment, i.e., the quasi contract cause of action. " 'Briefly stated, a quasi-contractualobligation is one imposed by law where there has been no agreement or expression of assent,by word or act, on the part of either party involved. The law creates it, regardless of theintention of the parties, to assure a just and equitable result' " (Clark-Fitzpatrick, Inc. v LongIs. R.R. Co., 70 NY2d 382, 388-389 [1987], quoting Bradkin v Leverton, 26 NY2d192, 196 [1970]). Where, as here, there is an express contract governing the rights of the parties,the rights of the parties are defined by the contract, and thus a quasi contract cause of action doesnot lie.
We need not address defendant's remaining contentions in light of our determination.Present—Smith, J.P., Centra, Fahey, Green and Pine, JJ.