Opinion
CA 02-02540
May 2, 2003.
Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered September 9, 2002, which dismissed the complaint.
PHILIPPONE LAW OFFICES, ROCHESTER (KIMBERLY J. CAMPBELL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
PRESENT: WISNER, J.P., SCUDDER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by reinstating the second and third causes of action and as modified the order is affirmed without costs.
Memorandum:
We agree with plaintiff that Supreme Court erred in dismissing the second and third causes of action of the complaint in the absence of a request by defendant for such relief ( see Hoeffner v John F. Frank, Inc., 302 A.D.2d 428 [Feb. 10, 2003]; Sena v. Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345, 346; Gibbs v. Kinsey, 120 A.D.2d 701). We therefore reinstate those causes of action, which seek to recover on theories of quantum meruit and unjust enrichment. Contrary to the court's conclusion, those causes of action do not seek to enforce defendant's alleged promise per se but instead seek to recover the reasonable value of property or services rendered by plaintiff in reliance on such promise. Thus, those causes of action are not barred by the statute of frauds ( see Farash v. Sykes Datatronics, 59 N.Y.2d 500, 503-504; Bradkin v. Leverton, 26 N.Y.2d 192, 198-199; Matter of Barr, 252 A.D.2d 875, 877; Mirchel v. RMJ Sec. Corp., 205 A.D.2d 388, 390-391; Peters v Morse, 96 A.D.2d 662) . We further conclude that the court erred in determining as a matter of law on the record before it that plaintiff had not performed the services and incurred the expenditures in question with "an expectation of compensation [therefor]." We do not reinstate the remaining cause of action for breach of contract, however, because plaintiff concedes that it is barred by the statute of frauds and has abandoned any issue on appeal with respect to its dismissal ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984). Thus, we modify the order by reinstating the second and third causes of action.