| Goldstein v Derecktor Holdings, Inc. |
| 2011 NY Slip Op 05020 [85 AD3d 728] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Jeffrey S. Goldstein, Appellant, v Derecktor Holdings, Inc.,Respondent. |
—[*1] Flemming Zulack Williamson Zauderer, LLP, New York, N.Y. (Mark C. Zauderer and JasonT. Cohen of counsel), for respondent.
In an action to recover damages based on quantum meruit, the plaintiff appeals from an orderof the Supreme Court, Nassau County (Palmieri, J.), entered May 4, 2010, which granted thedefendant's motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the second amendedcomplaint.
Ordered that the order is reversed, and on the law, with costs, and the defendant's motionpursuant to CPLR 3211 (a) (1) and (7) to dismiss the second amended complaint is denied.
In a prior order in this action dated December 24, 2009, the Supreme Court dismissed,pursuant to CPLR 3211 (a) (1) and (7), the first cause of action in the first amended complaint,which sought to recover damages for breach of contract. The Supreme Court also dismissed,pursuant to CPLR 3211 (a) (1) and (7), the second cause of action in the first amended complaint,which sought to recover reasonable compensation based on quantum meruit, with leave toreplead. Thereafter, the plaintiff filed a second amended complaint which alleged, among otherthings, that the plaintiff performed certain consulting services for the defendant between June2008 and February 2009, that the plaintiff's services inured to the defendant's benefit in the sumof $33,750,000, and that the plaintiff received payment in the sum of only $70,000, plus $1,200in expenses. The plaintiff seeks to recover the reasonable value of his services in quantummeruit. In an order entered May 4, 2010, the Supreme Court granted the defendant's motionpursuant to CPLR 3211 (a) (1) and (7) to dismiss the second amended complaint. We reverse.
To state a cause of action based on quantum meruit, a plaintiff must allege (1) theperformance of services in good faith, (2) the acceptance of the services by the person to whomthey are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value ofthe services (see Fulbright & Jaworski,LLP v Carucci, 63 AD3d 487, 488-489 [2009]; Soumayah v Minnelli, 41 AD3d 390, 391 [2007]). Contrary to theSupreme Court's determination, according the plaintiff the benefit of every possible inference(see Leon v Martinez, 84 NY2d 83, 87 [1994]), the second amended complaintadequately states the elements of a cause of action based on quantum meruit (see [*2]generally Corsello v Verizon N.Y., Inc., 77 AD3d 344[2010]). Moreover, the documentary evidence submitted by the defendant on its motion did notresolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim (see Elow v Svenningsen, 58 AD3d674 [2009]). The defendant avers that it refused to pay the plaintiff by way ofpercentage-based compensation. However, because there is a dispute, inter alia, as to whether thedefendant agreed to pay the plaintiff additional compensation, and whether the plaintiff had areasonable expectation of additional compensation, the defendant's motion to dismiss the secondamended complaint should have been denied (see Gateway I Group, Inc. v Park Ave. Physicians, P.C., 62 AD3d141, 149 [2009]). Covello, J.P., Eng, Leventhal and Cohen, JJ., concur.