Opinion
No. 34301/08.
2012-04-2
KITCHEN & BATH DESIGN GALLERY, Plaintiff, v. Gary J. LOMBARD, Defendant.
David A. Stern, Esq., Davis & Stern, PC, New York, for plaintiff. Anthony J. Auciello, Esq., Brooklyn, for defendant.
David A. Stern, Esq., Davis & Stern, PC, New York, for plaintiff. Anthony J. Auciello, Esq., Brooklyn, for defendant.
CAROLYN E. DEMAREST, J.
The following papers numbered 1 to 11 read herein:
+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +---------------------------------------------------------------+-------------¦ ¦Notice of Motion/Order to Show Cause/Petition/Cross Motion and ¦1–37–10 ¦ ¦Affidavits (Affirmations) Annexed ¦ ¦ +---------------------------------------------------------------+-------------¦ ¦Opposing Affidavits (Affirmations) ¦4–511 ¦ +---------------------------------------------------------------+-------------¦ ¦Reply Affidavits (Affirmations) ¦ ¦ +---------------------------------------------------------------+-------------¦ ¦Affidavit (Affirmation) ¦ ¦ +---------------------------------------------------------------+-------------¦ ¦Other Papers Plaintiff's Memorandum of Law ¦6 ¦ +-----------------------------------------------------------------------------+
In this action by plaintiff Kitchen & Bath Design Gallery (plaintiff) against defendant Gary J. Lombard (defendant) for, among other things, breach of contract and quantum meruit, plaintiff moves for an order, pursuant to CPLR 3212, awarding it summary judgment in its favor, or in the alternative, pursuant to CPLR 3211(b), dismissing defendant's defenses. Defendant cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's action against it.
BACKGROUND
Defendant is the owner of a three-family residential building located at 1583 Lincoln Place, in Brooklyn, New York, which was substantially damaged by a fire. According to Gardy Cadet, who is plaintiff's principal and president, he was contacted by Jean Zephirin, who was acquainted with defendant, and who had been approached by defendant to perform the needed repair work to the building. Defendant allegedly retained plaintiff's predecessor, Mr. Cadet's former company, International Tile Gallery, Inc. (International Tile), in June 2006 to clean up the fire damage and restore the dwelling, which was deemed uninhabitable, until plaintiff, as the successor company to International Tile, obtained all licenses and work permits. Mr. Cadet asserts that there was an oral agreement entered into between plaintiff and defendant in June 2006, which provided that plaintiff would repair the visible damage to this multi-family dwelling for an original total price of $280,000. Payment was to be made by defendant's insurance carrier, Tower Insurance Company (Tower). According to plaintiff, its arrangement was to charge defendant the amount of his insurance estimates, which were slightly more than $280,000. Plaintiff claims that it performed work at the premises between June 12, 2006 and May 2007. Mr. Cadet attests that of this $280,000 amount, defendant paid only $188,394.
Mr. Cadet further asserts that as the project progressed, damage was discovered which was not visible when the original estimate was made, and that defendant asked for significant additional work beyond the repair of the fire damage. He claims that such additional work involved some very expensive requests. Specifically, he asserts that defendant wanted to completely re-engineer the layout of the building interior, which required an architect and required the framing to be re-done wall-to-wall with all new lumber. He also asserts that defendant wanted to transform the property from one which was served by a single boiler to one with three separate boilers.
Mr. Cadet states that plaintiff performed extra services for the total price of $93,090, and that, upon the project's completion in May 2007, plaintiff submitted bills for $93,090 for the change orders. Plaintiff has annexed invoices setting forth the work performed and seeking payment. Significantly, defendant submitted plaintiff's bills for this extra work in the amount of $93,090 to Tower for payment, but they were rejected as unrelated to the loss. Plaintiff asserts that this extra work was done, no part of it was paid, and that it is entitled to receive $93,090 for its work. Plaintiff claims that it is, therefore, owed $93,090 for the extra work plus the $91,605.90 due on the original $280,000, totaling $186,695.90.
Copies of checks submitted by defendant show that plaintiff received two checks for $67,183.01 and one check for $47,028.10 from Wells Fargo Mortgage Services (Wells Fargo) (as an escrow disbursement of the insurance proceeds), and one check for $7,000 from Tower. These checks total $188,394.12. Plaintiff claims that it also received two checks for $20,000 (one from defendant and one from Tower), both of which amounts were given back to defendant out of insurance proceeds to pay him for equipment which he bought for the job. Defendant has also submitted Forms 1099–Misc from Wells Fargo, showing a payment to International Tile, as recipient, of $134,366.02 for tax year 2006 and a payment of $67,183 for tax year 2007 (totaling $201,549.02). These tax forms, however, do not show that defendant paid plaintiff all of the amounts owed to it, and are also insufficient to demonstrate that these payments were from defendant for the alleged contract at issue.Defendant claims that he never promised to pay plaintiff more than $140,000 for all of its work, and that his agreement with plaintiff was that the work would be performed by plaintiff for between $130,000 and $140,000. Defendant further claims that he, Mr. Zephirin, and plaintiff were to split the difference between the amount of $130,000 to $140,000 and the amount received from Tower in the proportions of 25%, 35%, and 40%, respectively.
On December 24, 2006, plaintiff filed this action against defendant. Plaintiff's complaint alleges a first cause of action for breach of contract, a second cause of action for unjust enrichment, a third cause of action for an account stated, and a fourth cause of action for quantum meruit. Plaintiff's fifth cause of action alleges that defendant forged its name on the checks received from Tower to pay it, and plaintiff's sixth cause of action alleges that defendant converted the final check received from Tower for his own use. Plaintiff's first through sixth causes of action seek recovery of $184,695.90 plus interest from May 2007. Plaintiff's seventh cause of action seeks to foreclose a mechanic's lien filed by it on December 28, 2007 in the amount of $71,000.
Defendant has interposed an answer to plaintiff's complaint, containing defenses and counterclaims. Defendant's first affirmative defense alleges that plaintiff has failed to state a cause of action, defendant's second affirmative defense alleges that the assignment from International Tile to plaintiff was invalid, defendant's third affirmative defense alleges that plaintiff was not properly licensed and incorporated, defendant's fourth affirmative defense alleges that International Tile was not properly licensed and/or incorporated and therefore lacked the capacity to assign the contract to plaintiff, defendant's fifth affirmative defense alleges that plaintiff failed to complete the contract in a workmanlike manner, defendant's sixth affirmative defense alleges that defendant did not consent to any assignment, defendant's seventh affirmative defense alleges payment in full, defendant's ninth affirmative defense
alleges that any damages suffered by plaintiff were caused in whole by its own culpable conduct, and defendant's tenth affirmative defense alleges a lack of privity between plaintiff and defendant. Defendant's first counterclaim alleges that plaintiff failed to complete the work in a timely and workmanlike manner, and defendant's second counterclaim alleges fraud.
There is no eighth affirmative defense.
DISCUSSION
The court must first address defendant's cross motion since it pertains to the viability of plaintiff's claims.
Defendant, in its cross motion, argues that plaintiff's complaint must be dismissed based upon plaintiff's failure to comply with General Business Law § 771.
Defendant's cross motion only addresses plaintiff's claims for breach of contract and quantum meruit and does not address any of the other causes of action in plaintiff's complaint. Thus, the court will not address these other causes of action.
General Business Law § 771(1) provides that “[e]very home improvement contract subject to the provisions of ... article [36–a], and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract.” The writing is required to contain certain specified terms, including “[a] description of the work to be performed, the materials to be provided to the owner, including make, model number or any other identifying information, and the agreed upon consideration for the work and materials” ( General Business Law § 771[1][c] ).
Although defendant did not plead the affirmative defense of illegality based upon General Business Law § 771 in its answer, it has been held that where the basis of a motion for summary judgment is an unpleaded defense of illegality for failure to obtain a license, the motion is not dismissible for failure to plead illegality as an affirmative defense ( see Cupples Prods. Div. of H .H. Robertson Co. v. Morgan Guar. Trust Co. of NY, 199 A.D.2d 206, 206 [1993];Mindich Devs. v. Milstein, 164 Misc.2d 71, 75 [1995] [holding that a defense pursuant to General Business Law § 771 was not waived by the defendant's failure to plead it in his answer], revd on other grounds227 A.D.2d 536 [1996]. Thus, the court is required to address the merits of this defense raised in defendant's cross motion.
General Business Law § 770 defines an “owner” as “any homeowner” and defines a “home improvement contract” as an agreement between a home improvement contractor and an owner for the performance of a home improvement where the aggregate contract price, including all labor, services and materials to be furnished by the home improvement contractor, exceeds $500. Thus, General Business Law § 771 applies to the home improvement contract at issue.
“[T]he failure of plaintiff to enter into a signed written home improvement contract in conformity with General Business Law § 771 bars recovery based upon breach of contract” (Frank v. Feiss, 266 A.D.2d 825, 825 [1999];see also Harter v. Krause, 250 A.D.2d 984, 986–987 [1998];Mindich Devs. v. Milstein, 227 A.D.2d 536, 537 [1996];cf. Wowaka & Sons v. Pardell, 242 A.D.2d 1, 7 [1998] ). Consequently, defendant's cross motion, insofar as it seeks summary judgment dismissing plaintiff's breach of contract claim, must be granted ( seeCPLR 3212[b] ).
However, while the failure to strictly comply with General Business Law § 771 bars recovery under an oral home improvement contract, “such failure does not preclude recovery for completed work under principles of quantum meruit” (Harter, 250 A.D.2d at 986–987;see also Evans–Freke v. Showcase Contr. Corp., 85 AD3d 961, 962 [2011];William Conover, Inc. v. Waldorf, 251 A.D.2d 727, 728 [1998];Mindich Devs., 227 A.D.2d at 527; Matter of Custom Crafts by Bulzomi v. Frommer, 182 A.D.2d 760, 760 [1992] ).
Defendant contends, however, that plaintiff's claim for quantum meruit must be dismissed. “The elements of a cause of action sounding in quantum meruit are (1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered” (Evans–Freke, 85 AD3d at 962;see also Wehrum v. Illmensee, 74 AD3d 796, 797 [2010];AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 AD3d 6, 19 [2008] ). “While the measure of damages for breach of contract based upon substantial performance is the contract price less the cost of completion and the cost of repairing work improperly done ... the measure of damages in quantum meruit is the reasonable value of the labor and materials supplied by plaintiff” (Frank, 266 A.D.2d at 826;see also Martin H. Bauman Assocs. v. H & M Intl. Transp., 171 A.D.2d 479, 484 [1991];Moors v. Hall, 143 A.D.2d 336, 337–338 [1988] ).
Defendant argues that plaintiff has failed to produce sufficient evidence or documentation in support of its claim for quantum meruit. Defendant asserts that plaintiff has not produced the number of workers, the hours worked, the days worked, what work was performed, what materials were purchased, what was installed, or what the reasonable rate was for any of the work allegedly performed. Defendant asserts that documents, such as payroll records and expenses, exist, as acknowledged in a letter dated June 21, 2011 by plaintiff's counsel, in which he objected to providing payroll records as being irrelevant to plaintiff's claim.
In claiming that plaintiff has produced insufficient documentation, defendant relies upon plaintiff's failure to comply with an order of this court dated July 27, 2011. That order directed plaintiff to provide supplemental responses by September 6, 2011 to the notices to produce served by each party on or about July 13, 2010, and that the failure to respond to any outstanding demands would result in preclusion. However, no copy of the notice to produce has been submitted by defendant, and defendant does not assert that any existing documents, other than payroll records, have not been produced by plaintiff in compliance with such notice to produce. As stated in plaintiff's counsel's June 21, 2011 letter, plaintiff has produced bills and receipts, as well as insurance documents, in response to the notice to produce. Plaintiff will be precluded from offering at trial any documentation not previously produced. However, since the relevant notice to produce has not been supplied, it is not possible to determine that there is an absence of sufficient documentation from which to determine the fair and reasonable value of plaintiff's work.
In opposition to defendant's cross motion and in support of its own motion, plaintiff argues that it has established the value of the work performed by it and that it is entitled to summary judgment for the amount of $186,695.90. As proof of the value of its claims, plaintiff has submitted Tower's records. Tower's records reflect a notation dated July 30, 2007, that Allen Dahle & Co., Inc. (Dahle), the general property and casualty adjuster hired by Tower, had verified through inspection that all repairs were made. Tower's records further reflect a notation dated July 31, 2007, stating that defendant contracted in the amount of $431,540 for repairs, and that $93,090 was deducted for repairs not related to the loss, leaving a balance of $338,450.
Plaintiff also points to the fact that on March 27, 2006, Dahle estimated the loss at $280,440 based upon an estimate dated January 18, 2006 that it received from Blaise Muscianesi Associates, Inc. (Muscianesi), an appraiser, which had determined the overall cost of repairs to be worth that amount. Plaintiff notes that the Muscianesi appraisal did not encompass the cost of the extra work since it estimated the total cost of “repair” to the boiler at $450, and did not relate to new boilers, but to radiators in each unit, steam risers, and wiring. Plaintiff has also submitted an estimate by Fire & Restoration Appraisals, LLC dated January 4, 2006, prepared for defendant, which sought $427,612.35, not including an amount for the three new boilers or anything significant for the roof.
Plaintiff further points out that on June 2, 2006, before starting any work at the premises, it signed a “Release of Claim for Mechanic's Lien.” This release stated that in consideration of the sum of $290,000, being full and final payment under the contract, and acknowledging receipt of this payment, plaintiff waived and released all mechanic's liens arising out of the contract. While the court, in its decision and order dated April 18, 2011, found this release to be void as against public policy and unenforceable because it was executed before any work was begun by plaintiff on the project and before any payments were made to it ( seeLien Law § 34), plaintiff relies upon such release as constituting evidence that the estimated cost of repairs was $290,000.
In addition, plaintiff has annexed 10 change order invoices for the additional work, which total $93,090. These 10 change orders specifically set forth the items of additional work performed by plaintiff and lists the prices sought for this additional work. As noted, defendant submitted its bills for extra work in the amount of $93,090 to Tower for payment.
Thus, plaintiff has submitted adequate documentation of the services it allegedly performed for defendant, to survive defendant's cross motion for summary judgment with respect to its quantum meruit claim ( see Power Cooling Inc. v. Churchill School & Ctr., 17 AD3d 148, 148 [2005] ). In satisfying the requisite elements for a quantum meruit claim, plaintiff has asserted that it performed these services in good faith with the expectation of payment, and that defendant accepted these services (see Evans–Freke, 85 AD3d at 962;Wehrum, 74 AD3d at 797;AHA Sales, Inc., 58 AD3d at 19). Furthermore, plaintiff's submissions and the testimony at trial may establish the reasonable value of its alleged services ( see Evans–Freke, 85 AD3d at 962–963;compare Geraldi v. Melamid, 212 A.D.2d 575, 576 [1995] ). Consequently, defendant's cross motion, insofar as it seeks summary judgment dismissing plaintiff's quantum meruit claim, must be denied.
Plaintiff, in its motion seeking summary judgment in its favor, argues that defendant's account of what transpired is contradicted by the documents discussed above, which show that the job estimates were for a minimum of $280,000 (although defendant initially sought approximately $431,540), and that it was required to sign the release acknowledging receipt of $290,000 (as the estimated price it would receive). Plaintiff maintains that the documents submitted to Tower and the payments made by Tower based upon the cost of repair (which did not include the extra work) establish that the value of the work performed was between $280,000 and $290,000. Plaintiff contends that it has, therefore, demonstrated that it is entitled to receive the amount of $91,606, which is still due and owing on the original contract.
Plaintiff further argues that it has shown that it performed the extra services worth $93,090 based upon Mr. Cadet's sworn affidavit, the invoices detailing the work performed, and the documentation showing that defendant submitted a claim for payment for these extra services to Tower which was rejected as unrelated to the loss. Plaintiff contends that since this extra work was done and no part of it was paid, it is entitled to recover this additional $93,000 from defendant. Plaintiff maintains that the defenses raised by defendant have no merit and that it is, therefore, entitled to summary judgment in its favor for $184,695.90.
Defendant, in opposition, points out that plaintiff filed a mechanic's lien on December 28, 2007, some seven months after May 2007 when plaintiff claims to have finished the project and subsequent to the dates of the invoices for extra work. Defendant notes that while the notice of mechanic's lien stated that the total agreed price and value was $280,000, plaintiff alleged under oath that $71,000 was the unpaid amount. Defendant asserts that the difference between this amount and the $184,695.90 sought by plaintiff in its complaint as the balance due has not been explained by plaintiff. Plaintiff, in reply, asserts that the mechanic's lien was filed prior to retaining counsel and a thorough analysis of the work performed.
Defendant also points out that the change orders submitted by plaintiff each contain a section entitled “Accepted” for defendant to acknowledge acceptance of the change order, that the prices and specifications of the revisions are satisfactory and providing a space for the date of acceptance and defendant's signature. None of these sections in the change orders, however, is signed by defendant, and, thus, they do not, on their face, show defendant's agreement as to the price for this work. In this regard, Mr. Cadet conceded, at his deposition, that there was no written agreement with defendant signed by him, agreeing to the extra work (Mr. Cadet's Dep. Transcript at 95).
Furthermore, while the release signed by plaintiff and relied upon in support of plaintiff's motion constitutes some evidence of the estimated value of the repairs, it is not conclusive since it was executed before the work was begun, and was a document requested by Tower before it would make any payments in order to protect it from liability. The release also does not address the cost or value of the extra work allegedly performed by plaintiff.
Moreover, defendant, in his sworn affidavit, asserts that he purchased the property for investment, that Mr. Zephirin and plaintiff agreed that the project could be done for about $130,000, and that they all knew that Tower was going to pay upwards of $200,000. Defendant has submitted a copy of a Partnership Agreement dated June 5, 2006, which he alleges was entered into between him, Mr. Cadet, Mr. Zephirin, for the purpose of renovation of the premises and future projects. Under this alleged Partnership Agreement, plaintiff was to receive 40% of the net profits, Mr. Zephirin was to receive 35% of the net profits, and defendant was to receive 25% of the net profits. This Partnership Agreement, however, is not signed by defendant, Mr. Cadet, or Mr. Zephirin.
Mr. Zephirin has also submitted his sworn affidavit, which supports defendant's position. Mr. Zephirin similarly attests that he, defendant, and Mr. Cadet all agreed that the project could be done within the $130,000 to $140,000 price range and that they would split the difference between the sum paid by Tower and the actual cost to complete the project in the proportions stated above. Mr. Zephirin further attests that plaintiff had agreed to pay him a salary of $1,000 per week as an independent contractor, but reneged on the agreement and did not pay him. In this regard, Mr. Cadet testified, at his deposition, that he verbally agreed to pay Mr. Zephirin, but that he did not recall how much he paid him (Mr. Cadet's Dep. Transcript at 95). Mr. Zephirin has annexed the first page of an alleged Independent Contractor Agreement between him and plaintiff, dated June 3, 2006, for a term commencing on June 21, 2006 and ending on August 15, 2006 or when the contract at defendant's premises ended, providing for payment by plaintiff to him of $1,000 per week for services performed. Although the first page of this Independent Contractor Agreement states that it is one of three, the other two pages have not been submitted to the court, and this agreement has not been shown to have been signed by plaintiff.
Defendant also complains about the quality of the work performed by plaintiff. Defendant claims that plaintiff would not send any workers to the house for weeks at a time, and when workers did show up, they were there for under four hours, and most of the time, only one worker would come. Defendant further claims that the work performed by plaintiff was performed in an unworkmanlike manner and had to be redone. Specifically, he states that the electrical work and plumbing work were not done, that the roof work was performed by Mr. Zephirin and not plaintiff, that the basement “was left a wreck,” that plaintiff caused the ceiling to fall, and that many other items were not done at all or were done in an unworkmanlike manner. Defendant asserts that he had to complete the work on his own with the assistance of Mr. Zephirin who redid and completed plaintiff's work. Defendant further asserts that he had to pay Mr. Zephirin directly, that he paid for materials, and that he hired electricians and plumbers and others to correct and complete the house.
Mr. Zephirin similarly asserts that after plaintiff left the job, it was incomplete and unsatisfactorily performed, and that he and defendant finished the house themselves, redoing plaintiff's allegedly less than satisfactory work. He affirms that defendant paid him and his workers to complete the house and to correct all of the alleged mistakes and improper work performed by plaintiff. Mr. Cadet, in his reply affidavit, does not respond to these assertions.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and thus summary judgment should only be granted when there is no doubt as to the absence of triable issues of material fact ( see Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974];Kolivas v. Kirchoff, 14 AD3d 493, 493 [2005] ). The court's function on a motion for summary judgment is “to determine whether material factual issues exist, not to resolve such issues” (Lopez v. Beltre, 59 AD3d 683, 685 [2009];see also Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ).
“It is not the court's function on a motion for summary judgment to assess credibility” (Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631 [1997] ). “On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine,' “ and “[a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact' “ (Pryor & Mandelup, LLP v. Sabbeth, 82 AD3d 731, 732 [2011], quoting 6243 Jericho Realty Corp. v. AutoZone, Inc., 27 AD3d 447, 449 [2006] ). “Summary judgment is inappropriate where triable issues of fact or credibility are raised that require a trial” (Brown v. Kass, 91 AD3d 894, 895 [2012] ).
Here, numerous triable issues of fact and credibility are raised which preclude summary judgment with respect to plaintiff's cause of action for quantum meruit. Thus, plaintiff's motion for summary judgment in its favor must be denied ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980];Lopez, 59 AD3d at 685).
Plaintiff's motion also seeks dismissal of defendant's affirmative defenses. Since plaintiff's complaint states a cause of action, defendant's first affirmative defense is without merit and must be dismissed ( seeCPLR 3211[b]; 3212). Plaintiff's second, third, fourth, sixth, and tenth affirmative defenses were already addressed in the court's April 18, 2011 decision and order, which found that plaintiff was licensed, and that plaintiff had shown that it was the contractor who obtained the permit to work on the project. Thus, these defenses are devoid of merit and must be dismissed ( see id.). Defendant's fifth affirmative defense, which alleges that plaintiff failed to complete the contract in a workmanlike manner, is disputed and raises triable issues of fact, and, therefore, dismissal of this defense is not warranted. Defendant's seventh affirmative defense of payment in full is at the crux of this litigation since defendant alleges that it has fully paid plaintiff and plaintiff seeks to recover unpaid monies. Consequently, dismissal of defendant's seventh affirmative defense must be denied. Defendant's ninth affirmative defense, which alleges that plaintiff's damages were caused by its own conduct, is conclusory and unsupported and must be dismissed ( seeCPLR 3211[b]; 3212).
Defendant, in its cross motion, further contends that plaintiff should be precluded from recovery in this action based upon the doctrine of unclean hands. However, “[t]he doctrine of unclean hands is used only to bar the grant of equitable relief to a party who is guilty of immoral, unconscionable conduct ... and the party seeking to invoke the doctrine was injured by such conduct' “ (Wells Fargo Bank v. Hodge, 92 AD3d 775, 2012 N.Y. Slip Op 01246, *1 [2012], quoting National Distillers & Chem. Corp. v. Seyopp Corp., 17 N.Y.2d 12, 15–16 [1966];see also Gilpin v. Oswego Bldrs ., Inc., 87 AD3d 1396, 1399 [2011];Columbo v. Columbo, 50 AD3d 617, 619 [2008] ). Notably, “[i]t is a well-settled exception to the unclean hands doctrine that one who, although at fault, is not equally at fault, will not be denied equitable relief” (Dillon v. Dean, 158 A.D.2d 579, 580 [1990] ).
Here, defendant asserts that based upon the Partnership Agreement, in which he and Mr. Cadet agreed to split insurance proceeds rather than use all of the proceeds for the repair of the property, plaintiff engaged in immoral and unlawful conduct. Defendant, admits to his own participation in this alleged scheme in which he claims to have submitted an overinflated claim to Tower to recover monies under his own insurance policy, which would render him at least equally, and perhaps more, culpable than plaintiff. Defendant does not explain how he was injured by plaintiff's alleged misconduct other than that plaintiff is seeking payment for services that he expected would be fully paid for by the insurance company ( see generally Jara v. Strong Steel Door, Inc., 58 AD3d 600, 602 [2009] ). Moreover, since the issue of whether plaintiff ever agreed to split the net insurance proceeds is sharply disputed, it has not been shown that the doctrine of unclean hands is applicable to plaintiff. In any event, this affirmative defense was not pleaded in defendant's answer and was, therefore, waived ( seeCPLR 3018[b] ).
CONCLUSION
Accordingly, plaintiff's motion is denied insofar as it seeks summary judgment in its favor and is granted insofar as it seeks dismissal of defendant's first, second, third, fourth, sixth, ninth, and tenth affirmative defenses. Defendant's cross motion for summary judgment is granted to the extent that it seeks dismissal of plaintiff's breach of contract cause of action, and is denied insofar as it seeks dismissal of plaintiff's quantum meruit cause of action.
This constitutes the decision and order of the court.