Opinion
16282 Index No. 654342/20 Case No. 2021-01929
09-27-2022
DRAGONETTI BROTHERS LANDSCAPING NURSERY & FLORIST, INC., Plaintiff–Appellant, v. VERIZON NEW YORK, INC., Defendant–Respondent.
Kaufman Dolowich & Voluck, LLP, Woodbury (Erik A. Ortmann of counsel), for appellant. Herrick, Feinstein LLP, New York (Alan D. Kaplan of counsel), for respondent.
Kaufman Dolowich & Voluck, LLP, Woodbury (Erik A. Ortmann of counsel), for appellant.
Herrick, Feinstein LLP, New York (Alan D. Kaplan of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered April 28, 2021, which granted defendant's motion to dismiss the complaint for failure to state a cause of action and based on documentary evidence, unanimously affirmed, without costs.
The allegations in the complaint demonstrate that defendant's "common-law obligation to move [or protect its] facilities when they interfere with municipal work projects" ( City of New York v. Verizon N.Y., Inc., 4 N.Y.3d 255, 258, 794 N.Y.S.2d 293, 827 N.E.2d 276 [2005] ; see also Matter of Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244, 249, 678 N.Y.S.2d 567, 700 N.E.2d 1203 [1998] ), was not triggered, since plaintiff, as the contractor hired by a municipal agency to prune trees, cannot "unilaterally require [utility companies] to move their facilities simply by giving notice of the project" ( Van Tulco, Inc. v. City of New York, 62 A.D.3d 567, 568, 879 N.Y.S.2d 426 [1st Dept. 2009], lv denied 13 N.Y.3d 709, 2009 WL 3349852 [2009] ). Instead, either a direct order from the agency, or an interference agreement entered into between the contractor and utility company pursuant to a Section U provision in the procurement contract, is required ( id. at 568, 879 N.Y.S.2d 426 ; see, e.g., Perfetto Contracting Co., Inc. v. Brooklyn Union Gas Co., 42 Misc.3d 1207[A] n. 8, 2014 WL 30667, 2014 N.Y. Slip Op. 50004[U], [Sup. Ct., Kings County 2014] [agency order issued to utility]; Matter of General Contrs. Assn. of N.Y. v. Tormenta, 259 A.D.2d 177, 181–182, 696 N.Y.S.2d 155 [1st Dept. 1999], lv denied 95 N.Y.2d 754, 711 N.Y.S.2d 156, 733 N.E.2d 228 [2000] ). Similarly, the public works contracts utterly refute plaintiff's contention that defendant was required to deem its work necessary (see CPLR 3211[a][1] ).
Additionally, the complaint fails to state a cause of action for quantum meruit, account stated, and unjust enrichment. The quantum meruit claim fails because the substantive allegations in the complaint belie the conclusory allegation that defendant accepted the services at issue, and they failed to allege an expectation of compensation due to defendant's alleged refusals to agree that additional protective work was needed or pay for them (see Martin H. Bauman Assoc., Inc. v. H & M Intl. Transp., Inc., 171 A.D.2d 479, 484, 567 N.Y.S.2d 404 [1st Dept. 1991] ). The account stated claim fails because there was no alleged "agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due" ( Ryan Graphics, Inc. v. Bailin, 39 A.D.3d 249, 250, 833 N.Y.S.2d 448 [1st Dept. 2007] ; see also Interman Indus. Prods. v. R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 156, 371 N.Y.S.2d 675, 332 N.E.2d 859 [1975] ["no written instrument" existed "by which the defendant ... expressly obligated itself to make the payments required by the accounts stated"]). The unjust enrichment claim fails because, as with quantum meruit, there is no alleged "connection or relationship between the parties that could have caused reliance or inducement on the plaintiff's part" ( Georgia Malone & Co., Inc. v. Rieder, 86 A.D.3d 406, 408, 926 N.Y.S.2d 494 [1st Dept. 2011], affd 19 N.Y.3d 511, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ; accord Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ).
We have considered plaintiff's remaining contentions and find them unavailing.