| Caribbean Direct, Inc. v Dubset LLC |
| 2012 NY Slip Op 07778 [100 AD3d 510] |
| November 15, 2012 |
| Appellate Division, First Department |
| Caribbean Direct, Inc., Doing Business as CD Inc.,Appellant, v Dubset LLC et al., Respondents. |
—[*1] Gabriel Salem, Brooklyn, for respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered October 17, 2011,which, insofar as appealed from, granted defendants' motion for summary judgment dismissingthe quantum meruit claim, unanimously reversed, on the law, without costs, and the motiondenied.
"[T]o establish a claim in quantum meruit, a claimant must establish (1) the performance ofservices in good faith, (2) the acceptance of the services by the person to whom they arerendered, (3) an expectation of compensation therefor, and (4) the reasonable value of theservices" (Moses v Savedoff, 96AD3d 466, 471 [1st Dept 2012] [internal quotation marks omitted]).
Defendants do not dispute the first two elements. With respect to the third element, theycontend that plaintiff (a) did not expect compensation for any services other than thedevelopment of Dubset LLC's website and (b) should be estopped from arguing that it expectedcompensation for any such services. However, defendants failed to raise these arguments untiltheir reply papers below, when plaintiff had no chance to respond. (see e.g. Ritt v Lenox HillHosp., 182 AD2d 560, 562 [1st Dept 1992]). Were we to reach the merits, we would notethat "[t]he question of whether a party had a reasonable expectation of compensation for servicesrendered is a matter for the trier of fact to determine based on the evidence before it" (Moorsv Hall, 143 AD2d 336, 338 [2d Dept 1988]; see also Brennan Beer Gorman/Architects, LLP v Cappelli Enters., Inc.,85 AD3d 482, 483 [1st Dept 2011]).
Regarding the fourth element of quantum meruit, defendant Stein testified at his depositionthat Brian Miller, who is affiliated with plaintiff, (a) sent him an email with the number of hoursthat plaintiff had spent developing Dubset's website and (b) estimated that plaintiff had spent$30,000 to $40,000 developing the site. Stein further testified that, from the above data, he coulddeduce that plaintiff spent $100 to $200 per hour to develop the website. That is some evidenceof the value of plaintiff's services (see Rolleston-Daines v Estate of Hopiak, 263 AD2d883, 885 [3d Dept 1999] [plaintiff's "own cost estimates" were "the most probative evidence ofthe reasonable value of the services rendered"]; see also Brennan, 85 AD3d at 484).Concur—Friedman, J.P., Catterson, Renwick, DeGrasse and Román, JJ.