Opinion
January 31, 1992
Appeal from the Supreme Court, Ontario County, Henry, Jr., J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. The complaint alleges a cause of action for work performed and material supplied by plaintiff in remodelling defendants' home. On their motion for summary judgment, defendants submitted proof showing that plaintiff entered into a written contract for the remodelling of defendants' home for a fixed price, and that the contract contained a clause prohibiting oral modification. General Obligations Law § 15-301 (1), which upholds a provision in a contract that prohibits an oral modification, does not apply where there is partial performance and the partial performance is unequivocally referable to the oral modification. Nor does that section apply where, under the principles of estoppel, a party to the written agreement has induced another's reliance upon an oral modification and the conduct relied upon to establish the estoppel is not compatible with the written agreement (see, Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 343-344). We agree with defendants that plaintiff's submissions in opposition to the motion for summary judgment do not constitute evidence in admissible form, but contain conclusory statements of an alleged oral agreement. Nevertheless, we conclude that defendants, as the moving parties, have failed to sustain their burden of submitting proof in admissible form that plaintiff has no cause of action (see, CPLR 3212 [b]; Hayes v. Riccardi, 97 A.D.2d 954).
The court, however, should have dismissed plaintiff's cause of action based upon unjust enrichment or quantum meruit. A cause of action in quantum meruit will not lie where an express enforcible contract exists between the parties concerning the same subject matter (see, Miller v. Schloss, 218 N.Y. 400, 406-407). Plaintiff cannot rely upon the principles of unjust enrichment or quantum meruit to avoid the operation of General Obligations Law § 15-301 (1). Plaintiff cannot recover unless it proves an express oral agreement modifying the terms of the written contract or facts establishing an equitable estoppel (see, Chadirjian v. Kanian, 123 A.D.2d 596).
Supreme Court properly dismissed defendants' third-party claim against the individuals Graham and Shumway, who performed the work for the plaintiff corporation. Although the cause of action against those individuals is couched in terms of negligent performance of the work, the action is for breach of contract (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382). The individuals cannot be held liable where the contract was entered into by the corporation (see, Westminster Constr. Co. v. Sherman, 160 A.D.2d 867).