| A. Montilli Plumbing & Heating Corp. v Valentino |
| 2011 NY Slip Op 09572 [90 AD3d 961] |
| December 27, 2011 |
| Appellate Division, Second Department |
| A. Montilli Plumbing & Heating Corp.,Respondent, v Rudolpho Valentino et al., Appellants. |
—[*1] Hopkins & Kopilow, Garden City, N.Y. (Nicholas F. Miraglia of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froma judgment of the Supreme Court, Nassau County (Winslow, J.), entered August 31, 2010,which, after a nonjury trial, is in favor of the plaintiff and against the defendants RudolphoValentino and Jorge M. Perez in the principal sum of $27,713.
Ordered that the appeal by the defendant Rodolfo Valentin Salon is dismissed, as it is notaggrieved by the judgment appealed from (see CPLR 5511); and it is further,
Ordered that the judgment is affirmed insofar as appealed from by the defendants RudolphoValentino and Jorge M. Perez; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
"In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority isas broad as that of the trial court and includes the power to render the judgment it finds warrantedby the facts, bearing in mind that due regard must be given to the decision of a trial judge whowas in the position to assess the evidence and the credibility of witnesses" (D'Argenio v Ashland Bldg., LLC, 78AD3d 758, 758 [2010]; see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Golding v Gottesman, 41 AD3d 430, 430 [2007]).
Here, the Supreme Court did not err in finding in favor of the plaintiff on its cause of actionalleging breach of contract insofar as asserted against the defendants Rudolpho Valentino andJorge M. Perez (hereinafter together the individual defendants). The plaintiff showed, by apreponderance of the credible evidence, that the individual defendants breached an oralagreement pursuant to which they agreed to pay the plaintiff directly for the plumbing workperformed in the construction of their hair salon (see generally Flexible Bus. Sys., Inc. v Dag Media, Inc., 49 AD3d808, 808-809 [2008]; DiLorenzo vEstate Motors, Inc., 44 AD3d 702, 703 [2007]).
"The existence of an express agreement, whether oral or written, governing a [*2]particular subject matter precludes recovery in quasi contract forevents arising out of the same subject matter" (Morales v Grand Cru Assoc., 305 AD2d647, 647 [2003]). Upon the determination that there existed a valid and enforceable oralagreement between the plaintiff and the individual defendants, the plaintiff could not recover forunjust enrichment insofar as asserted against the individual defendants (see Clark-Fitzpatrick,Inc. v Long Is. R.R. Co., 70 NY2d 382, 388-389 [1987]; Lum v New Century Mtge. Corp., 19 AD3d 558, 559 [2005];cf. Zuccarini v Ziff-Davis Media, 306 AD2d 404, 405 [2003]). Similarly, the cause ofaction for an account stated was simply an alternative theory of liability to recover the samedamages allegedly sustained as a result of the breach of contract (see generally 34-35th Corp. v 1-10 Indus.Assoc., 2 AD3d 711, 712 [2003]; Tuck Indus. v Reichhold Chems., 151 AD2d565, 566 [1989]).
The Supreme Court's determination of damages in the sum of $27,713 was warranted by thefacts, as the plaintiff established that it sustained damages in that sum as a result of the individualdefendants' breach of the oral agreement (see Bridge Pub. Relations & Consulting, Inc. v Hylan Elec. Contr., Inc.,65 AD3d 603, 604-605 [2009]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Accordingly, the judgment must be affirmed. Dillon, J.P., Florio, Chambersand Miller, JJ., concur.