| Andrew R. Mancini Assoc., Inc. v Mary Imogene BassettHosp. |
| 2011 NY Slip Op 00130 [80 AD3d 933] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Andrew R. Mancini Associates, Inc., Appellant, v MaryImogene Bassett Hospital, Respondent, et al., Defendant. |
—[*1] Persun & Heim, P.C., Mechanicsburg, Pa. (Matthew E. Hamlin of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Dowd, J.), entered January 11, 2010in Otsego County, which granted defendants' motions for summary judgment dismissing thecomplaint.
In July 2002, defendant McCarthy Building Companies, Inc. contracted with defendant MaryImogene Bassett Hospital (hereinafter Bassett) to be the general contractor with respect to anexpansion project at Bassett's hospital located in the Village of Cooperstown, Otsego County.That same month, McCarthy, in turn, retained plaintiff to perform certain work on the project forthe sum of $1,360,971. Thereafter, in August 2002, prior to the execution of a writtensubcontract, plaintiff commenced work on the project on a "time and materials" basis, whereuponplaintiff would submit invoices for payment for work done. Between September and October[*2]2002, plaintiff submitted three such invoices, bearingnumbers 4393, 4430 and 4431.[FN1]All three invoices referenced job No. 4102—the job number assigned by plaintiff to thesubcontract. Also in September and October 2002, plaintiff submitted to McCarthy twodocuments entitled "Subcontractor's Application and Certificate for Pay," requesting payment foramounts corresponding to those three invoices. The applications deducted those invoice amountsfrom the subcontract price of $1,360,971. Thereafter, in November 2002, McCarthy presentedplaintiff with a written subcontract, which was executed in January 2003. Also in November2002, plaintiff, through its president, began periodically executing partial lien and claim waiversand affidavits, culminating in the execution of a final lien and claim waiver and affidavit in June2004, signed by plaintiff's project manager.
In 2005, plaintiff instituted this action claiming breach of contract, unjust enrichment,quantum meruit and account stated seeking $445,537.77 in damages. The crux of plaintiff's claimis that it performed work for Bassett outside the scope of its subcontract with McCarthy, on a"time and materials" basis, submitted invoices for that work, and has not been paid. Defendantseach moved for summary judgment dismissing all claims by plaintiff, among other relief.Supreme Court granted the motions, and plaintiff now appeals.[FN2]
Subcontractors cannot maintain actions for breach of contract against parties with whom theyare not in privity (see IMSEngrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1357 [2008], lvdenied 11 NY3d 706 [2008]; Robert H. Finke & Sons v Sears Oil Co., 256 AD2d868, 869 [1998]; Barry, Bette & Led Duke v State of New York, 240 AD2d 54, 56[1998], lv denied 92 NY2d 804 [1998]; Bubonia Holding Corp. v Jeckel, 189AD2d 957, 958 [1993]). Thus, plaintiff cannot maintain a breach of contract action againstBassett for its work under the subcontract with McCarthy, and its breach of contract actionagainst Bassett can only be sustained, if at all, on allegations of work performed for Bassett thatwas outside the scope of, and in addition to, the subject matter of its contract with McCarthy(see IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d at 1357; Robert H.Finke & Sons v Sears Oil Co., 256 AD2d at 869; Graystone Materials v PyramidChamplain Co., 198 AD2d 740, 741 [1993]).
"The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate theabsence of any material issues of fact, and the evidence produced by the movant must be viewedin the light most favorable to the nonmovant, affording the nonmovant every favorable inference"(Rought v Price Chopper Operating Co.,Inc., 73 AD3d 1414, 1414 [2010] [internal quotation [*3]marks, brackets and citations omitted]; see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York,49 NY2d 557, 562 [1980]). Here, Bassett established its prima facie entitlement to summaryjudgment dismissing plaintiff's claim based on evidence, through the testimony of McCarthy'svice-president of operations, that the three invoices identified by plaintiff as representing theextra work performed had all been paid. Bassett also pointed to waivers signifying receipt ofpayment that were signed by plaintiff's president (see MCK Bldg. Assoc. v St. LawrenceUniv., 301 AD2d 726, 728 [2003], lv dismissed 99 NY2d 651 [2003]).
In opposition, plaintiff failed to present sufficient evidence to create a question of fact(see Zuckerman v City of New York, 49 NY2d at 562). While plaintiff's chief executiveofficer asserted that plaintiff was not paid for "time and materials" work alleged to be performedfor Bassett outside the scope of the subcontract with McCarthy, he conceded in his depositionthat all such "time and materials" work was billed in invoice Nos. 4393, 4430 and 4431, and thatthere were no other invoices incorporating any other "time and materials" work. The chiefexecutive officer, plaintiff's president and plaintiff's secretary/treasurer all acknowledged thatthese three invoices were paid. As plaintiff failed to contradict Bassett's evidence that plaintiffwas paid for the specific work placed at issue in this case and also failed to submit proof that itperformed any other work for Bassett outside the scope of—and in addition to—thesubject matter of its subcontract with McCarthy, Supreme Court properly granted summaryjudgment in Bassett's favor dismissing plaintiff's claim for breach of contract.
Likewise, given that plaintiff failed to specifically articulate any work performed outside thescope of the subcontract for which it has not been paid, its claims for unjust enrichment andquantum meruit also fail (see IMS Engrs.-Architects, P.C. v State of New York, 51 AD3dat 1358; Clifford R. Gray, Inc. vLeChase Constr. Servs., LLC, 31 AD3d 983, 988-989 [2006]; Conklin v City ofSaratoga Springs, 267 AD2d 841, 842 [1999]; Graystone Materials v Pyramid ChamplainCo., 198 AD2d at 741). Finally, based on the absence of "an agreement between parties to anaccount based upon prior transactions between them with respect to the correctness of theaccount items and balance due" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869[1993], lv denied 82 NY2d 660 [1993]), and because plaintiff's claim was promptlydisputed, summary judgment dismissing plaintiff's claim for account stated was proper (seeJoe O'Brien Investigations v Zorn, 263 AD2d 812, 815 [1999]; Jim-Mar Corp. v AquaticConstr., 195 AD2d at 870).
Cardona, P.J., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1: Invoice No. 4393 actuallycomprised two invoices, both dated in September 2002, for the collective sum of $107,529.97.Invoice Nos. 4430 and 4431, both dated in October 2002, were for the sums of $317,230.90 and$20,776.56, respectively.
Footnote 2: Plaintiff failed to serveMcCarthy with the record or its brief in this matter and did not address in its brief SupremeCourt's grant of summary judgment to McCarthy. Accordingly, any challenge to Supreme Court'sdecision granting summary judgment dismissing the complaint as to McCarthy is deemedabandoned (see Kowalczyk vMcCullough, 55 AD3d 1208, 1210 n 2 [2008]).