| Brennan Beer Gorman/Architects, LLP v Cappelli Enters.,Inc. |
| 2011 NY Slip Op 04825 [85 AD3d 482] |
| June 9, 2011 |
| Appellate Division, First Department |
| Brennan Beer Gorman/Architects, LLP,Respondent-Appellant, v Cappelli Enterprises, Inc., et al.,Appellants-Respondents. |
—[*1] Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 18,2010, which, to the extent appealed from as limited by the briefs, denied defendants' motion forsummary judgment dismissing the first through sixth causes of action of the amended complaintand plaintiff's cross motion for summary judgment on its breach of contract causes of action,unanimously modified, on the law, to grant defendants' motion to the extent of dismissing thefirst through fifth causes of action of the amended complaint, and otherwise affirmed, withoutcosts.
On May 19, 2008, plaintiff submitted a proposal for architectural and engineering services todefendants relating to a proposed casino resort project (the project). Four days later, plaintiffinformed defendants that it was still "working on a formal agreement," but nonetheless askeddefendants to provide authorization to proceed. Defendants authorized plaintiff to start working,but expressly noted that plaintiff's "proposal and associated pricing" were "still under review and. . . subject to a formal agreement." Although plaintiff proceeded to work on theproject, the parties continued to exchange contract drafts and comments for several months,never coming to an express agreement on price and other terms. It is thus evident on this recordthat the parties' minds never met on the material terms of their agreement, including price (see Yenom Corp. v 155 Wooster St.Inc., 23 AD3d 259, 259-260 [2005], lv denied 6 NY3d 708 [2006]).Accordingly, defendants are entitled to summary judgment dismissing plaintiff's first and thirdcauses of action for breach of an express contract.
Defendants are also entitled to summary judgment dismissing plaintiff's fourth cause ofaction for breach of an implied contract. As noted, the record establishes that the parties neverreached an express agreement on the material term of price. Moreover, defendants' statement thatthey would be bound only by a formal agreement and their repeated rejection of plaintiff'sproposal for lump-sum pricing overrides their act of paying plaintiff's August 2008 invoice,which billed for work performed in June 2008 on a lump-sum basis (see Jordan Panel Sys. Corp. v TurnerConstr. Co., 45 AD3d 165, 179 [2007]).
Defendants' consistent objections to plaintiff's invoices requires dismissal of the fifth [*2]cause of action for an account stated (cf. Herrick, Feinstein vStamm, 297 AD2d 477, 478-479 [2002]).
Because plaintiff's express and implied contract claims should be dismissed, plaintiff'ssecond cause of action for attorneys' fees should also be dismissed, as that claim is premisedexclusively on the attorneys' fees provision contained in plaintiff's May 2008 proposal.
Supreme Court properly declined to dismiss plaintiff's sixth cause of action for quantummeruit, since triable issues of fact exist as to whether plaintiff could have reasonably expected tobe compensated for its services and the reasonable value of those services (see generally Fulbright & Jaworski, LLP vCarucci, 63 AD3d 487, 488-489 [2009]). Although the parties never reached anagreement on price, the record indicates that defendants acknowledged the need to pay plaintiff atleast some amount for its services. Indeed, on July 3, 2008, defendants directed plaintiff to bill"for now on a [time and materials] basis until we have reached conclusion on the contract," and,on August 18, 2008, defendants asked plaintiff to prepare a summary of spending and paymentstatus, noting that they wanted "to make sure we are staying current."
We reject defendants' contention that plaintiff cannot establish that defendants benefittedfrom plaintiff's services. The plaintiff asserting a valid claim in quantum meruit "recovers thereasonable value of his performance whether or not the defendant in any economic sensebenefitted from the performance" (Martin H. Bauman Assoc. v H & M Intl. Transp., 171AD2d 479, 484 [1991] [internal quotation marks omitted]).
We also reject defendants' contention that plaintiff cannot establish the reasonable value ofits services because it did not maintain itemized billing records detailing how it spent the asserted5,800 man-hours of work. There are other means of establishing the reasonable value of servicesrendered, including the plaintiff's invoices and evidence of the number of hours of servicerendered (see Paul F. Vitale, Inc. vParker's Grille, Inc., 23 AD3d 1147 [2005], lv denied 6 NY3d 707 [2006];Clark v Torian, 214 AD2d 938, 938 [1995]), both of which are available in the record.Moreover, plaintiff has submitted the affidavit of a licensed architect who, based on his review ofthe record, opined that plaintiff's schematic design work had a fair market value of at least $1.3million.
We note that, on appeal, plaintiff does not seek summary judgment on its quantum meruitclaim. In any event, we find that plaintiff is not entitled to such relief due to unresolved issues ofmaterial fact. We further note that defendants make no argument with respect to plaintiff'sseventh cause of action for a declaratory judgment. Concur—Tom, J.P., Saxe, Moskowitz,Acosta and Abdus-Salaam, JJ.