| Minelli Constr. Co., Inc. v Volmar Constr., Inc. |
| 2011 NY Slip Op 01627 [82 AD3d 720] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Minelli Construction Co., Inc., Respondent, v VolmarConstruction, Inc., et al., Appellants, et al., Defendants. |
—[*1] Melvin J. Kalish, Mineola, N.Y. (Joshua D. Spitalnik of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants VolmarConstruction, Inc., and Travelers Casualty and Surety Company of America appeal (1), as limitedby their brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), datedFebruary 17, 2010, as granted those branches of the plaintiff's motion which were for summaryjudgment on the first, second, and third causes of action asserted against them to the extent ofawarding the plaintiff the principal sum of $498,000, and (2) from a judgment of the same courtentered March 4, 2010, which, upon the order, is in favor of the plaintiff and against them in theprincipal sum of $498,000.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendant Volmar Construction, Inc. (hereinafter Volmar), was the general contractor ona construction project to renovate a school for the New York City School Construction Authority(hereinafter the SCA). The plaintiff subcontractor performed certain masonry work on theproject. When Volmar failed to pay the plaintiff for the work performed, the plaintiff filed anotice of mechanic's lien pursuant to Lien Law § 5, which Volmar discharged by obtaininga bond from the defendant Travelers Casualty and Surety Company of America (hereinafterTravelers) (see Lien Law § 21). The plaintiff commenced this action against,among others, Volmar and Travelers (hereinafter together the defendants), seeking, inter alia, torecover damages for breach of contract or in quantum meruit, and to foreclose its [*2]mechanic's lien. The plaintiff moved, among other things, forsummary judgment on its first, second, and third causes of action asserted against the defendantsto the extent of awarding it the principal sum of $498,000, which it claimed was the amount ofits subcontract. The Supreme Court granted those branches of the motion, and a judgment wasentered in favor of the plaintiff and against the defendants in the principal sum of $498,000.
"[T]he existence of a binding contract is not dependent on the subjective intent" of the parties(Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399 [1977]; seeMencher v Weiss, 306 NY 1, 7 [1953]). "In determining whether the parties entered into acontractual agreement and what were its terms, it is necessary to look, rather, to the objectivemanifestations of the intent of the parties as gathered by their expressed words and deeds"(Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d at 399; see Mencher vWeiss, 306 NY at 7; Matter of Express Indus. & Term. Corp. v New York State Dept. ofTransp., 93 NY2d 584, 589 [1999]). "Generally, courts look to the basic elements of theoffer and the acceptance to determine whether there is an objective meeting of the minds"(Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d at589). "The manifestation or expression of assent necessary to form a contract may be by word,act, or conduct which evinces the intention of the parties to contract" (Maffea v Ippolito,247 AD2d 366, 367 [1998]; see Knightv Barteau, 65 AD3d 671, 672 [2009]).
Here, while a letter of intent to enter into a subcontract which was issued by Volmar to theplaintiff was expressly contingent upon approval of the plaintiff's proposal by the SCA, the letterof intent did not constitute a binding contract, since it was merely an "agreement to agree" (Rivera v Alaimo, 54 AD3d 325,326 [2008]; see Pelham Commons Joint Venture v Village of Pelham, 308 AD2d 520[2003]), and was not signed by the parties. Rather, the plaintiff demonstrated, as a matter of law,that the parties' contract was formed subsequent to the issuance of this letter by Volmar'sacceptance of the plaintiff's written offer to perform certain masonry work for a fixed price of$498,000, through Volmar's "acquiescent conduct" (Eldor Contr. Corp. v County ofNassau, 272 AD2d 509, 509 [2000]; see Brown Bros. Elec. Contrs. v Beam Constr.Corp., 41 NY2d 397 [1977]; Birk Iron Works v Van Tulco, Inc., 178 AD2d 137[1991]). Specifically, in light of (1) the plaintiff's express refusal to negotiate the project as achange order, as sought by the SCA, rather than as a new contract, (2) the plaintiff's firm andconsistent commitment to the price it quoted, which was sent to Volmar in writing on severaloccasions, (3) Volmar's admission that the SCA provided it with an architect's/engineer'sestimate of the work, which estimate was comparable to the plaintiff's price, and (4) thetestimony of Volmar's project manager that he had reviewed the plaintiff's proposal and was"comfortable with th[e] dollar figure," the plaintiff demonstrated that Volmar's direction to theplaintiff to perform the work constituted an objective manifestation of assent to its price (seeBrown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397 [1977]; Eldor Contr.Corp. v County of Nassau, 272 AD2d 509 [2000]; Birk Iron Works v Van Tulco,Inc., 178 AD2d 137 [1991]). The fact that Volmar retained the plaintiff's first requisition(sent when 25% of the work was done), which contained the $498,000 price, and did notcommunicate to the plaintiff at that time that there was no agreement as to that price, providesadditional evidence that Volmar had accepted this term (see Brown Bros. Elec. Contrs vBeam Constr. Corp., 41 NY2d at 400). Further substantiating Volmar's acceptance of theterm was the fact that it filed a notice of claim with the SCA to recover the sum of $498,000 forthe plaintiff's work, which amount it described in a sworn affidavit as "[t]he fair and reasonablevalue of the . . . work" (cf.Woodward v Tan Holding Corp., 32 AD3d 467, 470 [2006]). In opposition to theplaintiff's prima facie showing, the defendants failed to raise a triable issue of fact.
While the Supreme Court properly awarded the plaintiff summary judgment on its causes ofaction to recover damages for breach of contract and to foreclose its mechanic's lien in theprincipal sum of $498,000, we note that the plaintiff was not entitled to an award of summaryjudgment on its second cause of action to recover damages in quantum meruit (see Parker Realty Group, Inc. vPetigny, 14 NY3d 864, 866 [2010]).
The plaintiff's remaining contention is without merit.
Accordingly, the plaintiff was properly awarded judgment against the defendants in theprincipal sum of $498,000. Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur.