| Brandeis Sch., Inc. v Yakobowicz |
| 2015 NY Slip Op 06203 [130 AD3d 850] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Brandeis School, Inc., Respondent, v RinaYakobowicz, Defendant, and Samuel Yakobowicz,Appellant. |
Jules A. Epstein, P.C., Garden City, N.Y., for appellant.
Darren Jay Epstein, Esq., P.C., New City, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendantSamuel Yakobowicz appeals, as limited by his brief, from so much of an order of theSupreme Court, Nassau County (Cozzens, Jr., J.), entered July 5, 2013, as denied hismotion for summary judgment dismissing the complaint insofar as asserted against him,and granted that branch of the plaintiff's cross motion which was for summary judgmenton the complaint insofar as asserted against him in the principal sum of $45,200.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,the motion of the defendant Samuel Yakobowicz for summary judgment dismissing thecomplaint insofar as asserted against him is granted, and that branch of the plaintiff'scross motion which was for summary judgment on the complaint insofar as assertedagainst the defendant Samuel Yakobowiz in the principal sum of $45,200 is denied.
In this action, the plaintiff, a private elementary and secondary school, seeks torecover against the defendants for a tuition bill relating to the attendance of thedefendants' son at the school for the 2006-2007 school term, and for certain periods priorto that term. In its complaint, the plaintiff asserted, inter alia, a cause of action allegingbreach of contract and a cause of action alleging that it was entitled to recover the tuitionbased on an account stated.
The defendant Samuel Yakobowicz (hereinafter the appellant) established, primafacie, that he did not enter into a contract with the plaintiff for the enrollment of his sonat school or for the payment of that child's tuition. In opposition, the plaintiff did notraise a triable issue of fact as to the existence of a contract between it and the appellant.Therefore, the appellant was entitled to summary judgment dismissing, insofar asasserted against him, the cause of action to recover damages for breach of a contract forthe payment of the subject tuition bill (see Moezinia v Ashkenazi, 105 AD3d 920, 921 [2013]; see also Elisa Dreier ReportingCorp. v Global NAPs Networks, Inc., 84 AD3d 122, 127 [2011]).
[*2] The appellant also demonstrated his prima facieentitlement to judgment as a matter of law dismissing the cause of action based on anaccount stated, based on evidence showing that the plaintiff never sent him an invoice oraccount statement. In opposition, the plaintiff did not raise a triable issue of fact. Thus,the appellant was entitled to summary judgment dismissing the cause of action to recoverdamages based on an account stated insofar as asserted against him (see Branch Servs., Inc. vCooper, 102 AD3d 645, 646-647 [2013]; see also State of New York v Swezey, 122 AD3d 829, 830[2014]; New Plan of HillsideVil., LLC v Surrette, 108 AD3d 512 [2013]).
The record reflected that, as a matter of law, the subject services rendered by theplaintiff did not constitute "necessaries" under the common law (see Gilberg vLennon, 212 AD2d 662, 663 [1995]; Medical Bus. Assoc. v Steiner, 183AD2d 86, 90 [1992]). Thus, the appellant was entitled to summary dismissal of thecomplaint insofar as asserted against him based on a common-law "necessaries" theory(see Gilberg v Lennon, 212 AD2d at 663; Medical Bus. Assoc. v Steiner,183 AD2d at 90).
The appellant also established, prima facie, that the plaintiff may not recover thesubject charges based on an unjust enrichment theory, as the payment of those chargeswas governed by an express contract (see Corsello v Verizon N.Y., Inc., 18 NY3d 777, 790[2012]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; Weiss v Benetton U.S.A.Corp., 124 AD3d 633, 636 [2015]). In opposition, the plaintiff failed to raise atriable issue of fact.
Contrary to the plaintiff's contention, the appellant is not collaterally estopped fromcontesting liability by virtue of several orders issued in a related matrimonial actionbetween 2000 through 2002 (see Yakobowicz v Yakobowicz, Sup Ct, NassauCounty, Jonas, J., index No. 202122/00). Those orders did not necessarily decide theidentical issue raised here, which involves the appellant's alleged obligation to pay tuitioncharges for certain periods subsequent to 2002 (see Cudar v Cudar, 98 AD3d 27, 31-32 [2012]; Frischknecht v Novaes, 85AD3d 722 [2011]).
Moreover, the Supreme Court erred in finding that the amounts incurred inconnection with tuition constituted "marital debt," a matter that may properly bedetermined only in a matrimonial action (see Domestic Relations Law§ 236 [B] [1] [c]).
Accordingly, the appellant was entitled to summary judgment dismissing thecomplaint insofar as asserted against him, and the plaintiff was not entitled to summaryjudgment on the complaint against the appellant. Skelos, J.P., Balkin, Chambers andMiller, JJ., concur.