| Ochoa v Montgomery |
| 2015 NY Slip Op 07632 [132 AD3d 827] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Luis Ochoa, Respondent, v Matthew J.Montgomery, Defendant, and Nancy Montgomery,Appellant. |
Leo P. Davis, P.C., East Moriches, N.Y., for appellant.
Tarbet & Lester, PLLC, Amagansett, N.Y. (E. Timothy McAuliffe, Jr., ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendantNancy Montgomery appeals from so much of an order of the Supreme Court, SuffolkCounty (Mayer, J.), dated July 21, 2014, as granted that branch of the plaintiff's motionwhich was for summary judgment on the issue of liability insofar as asserted against herand denied her cross motion for summary judgment dismissing the complaint insofar asasserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the plaintiff's motion which was for summary judgment on the issue ofliability insofar as asserted against the defendant Nancy Montgomery is denied, and thecross motion of the defendant Nancy Montgomery for summary judgment dismissing thecomplaint insofar as asserted against her is granted.
The plaintiff commenced this action to recover payment for work he allegedlyperformed for the defendant Matthew J. Montgomery (hereinafter Matthew) inconnection with Matthew's furniture restoration business. The complaint alleged that theplaintiff and Matthew entered into an agreement whereby the plaintiff would performwork for Matthew at various job sites, in return for which Matthew would pay theplaintiff at the rate of $20 per hour. The plaintiff and Matthew performed in accordancewith this agreement from 2005 until early 2009, when Matthew allegedly stopped payingthe plaintiff for his services for a period of approximately 18 months. The complaintfurther alleged that at one point, the plaintiff met with Matthew's wife, the defendantNancy Montgomery (hereinafter Nancy), who allegedly acted as the bookkeeper orfinancial manager for Matthew's business, and who purportedly signed a log bookmaintained by the plaintiff as an acknowledgment of the amount he was owed for hiswork.
In the first cause of action, asserted only against Matthew, the plaintiff alleged thatMatthew had breached their contract and owed him a total of $40,035 for unpaid work.The second and third causes of action, which seek recovery under theories of unjustenrichment and account stated, respectively, were asserted against both Matthew andNancy. In their answer, the defendants admitted the allegations of the complaint whichasserted that the plaintiff entered into an agreement with Matthew, that he performedwork for Matthew pursuant to that agreement, and that he was not paid for certain workin violation of that agreement, although the defendants disputed the precise [*2]amount owed to the plaintiff.
Thereafter, the plaintiff moved for summary judgment on the issue of liability againstboth defendants, relying upon the admissions contained in their answer. In response,Matthew conceded his liability to the plaintiff and sought a trial on the question of howmuch was owed to him. However, Nancy opposed the motion, contending that she didnot admit that she was liable for any amounts owed to the plaintiff. Furthermore, shecross-moved for summary judgment dismissing the complaint insofar as asserted againsther. The Supreme Court granted the plaintiff's motion and denied Nancy's cross motion.Nancy appeals.
Contrary to the plaintiff's contention and the determination of the Supreme Court, thedefendants' answer contains no admission by Nancy of personal liability for the amountsowed to the plaintiff under his agreement with Matthew. A fair reading of the plainlanguage contained in the complaint and the answer clearly demonstrates that, while thedefendants admitted that the plaintiff performed services for Matthew for which he wasnot paid, there was no admission that Nancy was personally liable for any amounts owedto the plaintiff. Accordingly, the plaintiff failed to demonstrate his prima facieentitlement to judgment as a matter of law on the issue of liability against Nancy, andthat branch of his motion which was for summary judgment on the issue of liabilityinsofar as asserted against Nancy should have been denied.
Moreover, Nancy established her prima facie entitlement to judgment as a matter oflaw dismissing the cause of action alleging unjust enrichment insofar as asserted againsther, since that cause of action was precluded by the existence of the contract between theplaintiff and Matthew covering the same subject matter (see Corsello v Verizon N.Y.,Inc., 18 NY3d 777, 790 [2012]; Brandeis Sch., Inc. v Yakobowicz, 130 AD3d 850 [2015];Weiss v Benetton U.S.A.Corp., 124 AD3d 633, 636 [2015]) and, in any event, she established that theplaintiff's performance of services for Matthew conferred no benefit on her so as tosupport an unjust enrichment cause of action against her (see generally Goel vRamachandran, 111 AD3d 783, 791-792 [2013]; Kalt v Ritman, 21 AD3d321, 323 [2005]; Clark v Daby, 300 AD2d 732 [2002]). The plaintiff failedto raise a triable issue of fact in opposition to Nancy's prima facie showing in thisregard.
Similarly, Nancy established her prima facie entitlement to judgment as a matter oflaw dismissing the cause of action to recover on an account stated insofar as assertedagainst her, since a cause of action for an account stated assumes the existence of anunderlying debt between the parties (see Shelly v Skief, 73 AD3d 1016 [2010]; see also Sunbelt Rentals, Inc. vNew York Renaissance, 126 AD3d 481 [2015]; Citibank [S.D.] N.A. v Cutler,112 AD3d 573 [2013]; Antokol & Coffin v Myers, 86 AD3d 876 [2011]), andneither Nancy's status as Matthew's spouse nor as the alleged bookkeeper or financialmanager of Matthew's business would render her personally liable for his debt to theplaintiff. Inasmuch as the plaintiff failed to raise a triable issue of fact in opposition toNancy's cross motion, the Supreme Court should have granted Nancy's cross motion forsummary judgment dismissing the complaint insofar as asserted against her. Mastro, J.P.,Leventhal, Duffy and Barros, JJ., concur.