Opinion
1326 CA 18–01249
03-15-2019
Patricia Karen KILLIAN, Plaintiff–Appellant, v. CAPTAIN SPICER'S GALLERY, LLC, Spicer Holdings, LLC, Kenneth A. Hooson and Gregory K. Hooson, Defendants–Respondents.
BARCLAY DAMON LLP, SYRACUSE (TERESA M. BENNETT OF COUNSEL), FOR PLAINTIFF–APPELLANT. CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (IAN W. GILBERT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
BARCLAY DAMON LLP, SYRACUSE (TERESA M. BENNETT OF COUNSEL), FOR PLAINTIFF–APPELLANT.
CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (IAN W. GILBERT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, payment under a theory of quantum meruit for work she performed at a gift shop that was originally owned by defendant Kenneth A. Hooson (Hooson). Hooson and defendant Gregory K. Hooson are the owners of defendant Captain Spicer's Gallery, LLC (Gallery) and defendant Spicer Holdings, LLC, which are the current owners of the gift shop and the property on which it is located. Supreme Court previously granted defendants' motion for partial summary judgment dismissing certain claims but, on a prior appeal, this Court reinstated those parts of the quantum meruit cause of action against the Gallery that were not barred by the statute of limitations ( Killian v. Captain Spicer's Gallery, LLC, 140 A.D.3d 1764, 33 N.Y.S.3d 650 [4th Dept. 2016], lv dismissed 29 N.Y.3d 981, 52 N.Y.S.3d 289, 74 N.E.3d 673 [2017] ). With respect to the reinstated claims, we concluded that defendants met their initial burden on the motion of establishing that plaintiff was not entitled to recover in quantum meruit for the services she rendered on the ground that, "because of the relationship between the parties, it is natural that such service[s] should be rendered without expectation of pay" ( id. at 1766, 33 N.Y.S.3d 650 [internal quotation marks omitted] ), but we further concluded that plaintiff raised a triable issue of fact "whether ‘she expected to be paid for the services’ despite that relationship and, if so, whether that expectation was reasonable" ( id. ). Plaintiff now appeals from a judgment dismissing the complaint upon a jury verdict that answered the latter questions in the negative. We affirm.
We reject plaintiff's contention that the verdict is contrary to the weight of the evidence. It is well settled that a verdict may be set aside as against the weight of the evidence only if "the evidence so preponderate[d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence" ( Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] [internal quotation marks omitted] ), and that is not the case here. "In order to make out a cause of action in quantum meruit or quasi contract, a plaintiff must establish (1) the performance of services in good faith; (2) the acceptance of those services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services" ( Landcom, Inc. v. Galen–Lyons Joint Landfill Commn., 259 A.D.2d 967, 968, 687 N.Y.S.2d 841 [4th Dept. 1999] ; see Killian, 140 AD3d at 1766, 33 N.Y.S.3d 650 ; Moors v. Hall, 143 A.D.2d 336, 337–338, 532 N.Y.S.2d 412 [2d Dept. 1988] ). In general, "[t]he performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services" ( Killian, 140 A.D.3d at 1766, 33 N.Y.S.3d 650 [internal quotation marks omitted]; see Farina v. Bastianich, 116 A.D.3d 546, 547–548, 984 N.Y.S.2d 46 [1st Dept. 2014] ). "Th[at] inference, however, may not be drawn where[,] because of the relationship between the parties, it is natural that such service should be rendered without expectation of pay" ( Moors, 143 A.D.2d at 338, 532 N.Y.S.2d 412 [internal quotation marks omitted]; see Robinson v. Munn, 238 N.Y. 40, 43, 143 N.E. 784 [1924] ; Killian, 140 A.D.3d at 1766, 33 N.Y.S.3d 650 ), and we conclude that there is a fair interpretation of the evidence pursuant to which the jury could have concluded that plaintiff and Hooson had such a relationship. We reject plaintiff's contention that the court abused its discretion in refusing to permit plaintiff to introduce into evidence checks that were written to her for services rendered on earlier dates, regarding claims that were barred by the statute of limitations. "A Trial Judge necessarily is vested with broad discretion to determine the materiality and relevance of proposed evidence" ( Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972 [1980] ) and, even if certain evidence is generally admissible, "[s]uch evidence may be excluded if the trial court finds that the risk of confusion or prejudice outweighs the advantage in receiving it" ( Salm v. Moses, 13 NY3d 816, 818, 890 N.Y.S.2d 385, 918 N.E.2d 897 [2009] ). Here, we conclude that the court did not abuse its discretion in declining to admit the checks at issue into evidence.
Plaintiff further contends that the court erred in indicating to the jurors, during a sidebar conference with the attorneys, that the case had previously been dismissed. There is no indication in the record before us that any juror heard any part of whatever conversation occurred off the record. Consequently, we cannot review plaintiff's contention inasmuch as "it is well settled that ‘[m]atter[s] dehors the record [are] not to be considered on appeal’ " ( Sanders v. Tim Hortons, 57 A.D.3d 1419, 1420, 869 N.Y.S.2d 721 [4th Dept. 2008] ; see Matter of Kaufmann's Carousel v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292, 305, 750 N.Y.S.2d 212 [4th Dept. 2002], lv denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165 [2003] ). The record belies plaintiff's further contention that, during a certain part of the court's preliminary instruction, the court informed the jury that the matter had previously been dismissed. We have considered plaintiff's remaining contention and conclude that it does not require a different result.