Opinion
0603599/2007.
February 14, 2008.
DECISION AND ORDER
This dispute arises out of a construction project, in which Defendant Heights HQ ("Heights") is the owner of property and Defendant Granite Group, LLC ("Granite") is the contractor. The project included a subcontracting agreement (the "Subcontract") between Plaintiff Mascon Restoration, Inc. ("Mascon") and Granite Group, LLC ("Granite"). Mascon brings five causes of action, including breach of contract and quantum meruit. Granite moves pursuant to CPLR 3211(a)(7) to dismiss the second cause of action for quantum meruit.
DISCUSSION
To state a claim in quantum meruit, a plaintiff must allege its good faith performance of services, the defendant's acceptance of those services, an expectation of compensation for the services, and the reasonable value of those services ( Skillgames, LLC v Brody, 1 AD3d 247, 252 [1st Dept 2003], citing Freedman v Pearlman, 271 AD2d 301, 304). Furthermore, under the rubric of Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., a cause of action sounding in quantum meruit is barred if there exists a written contract fully detailing all applicable terms and conditions of the agreement between the parties ( 70 NY2d 382, 388-89). "It is impermissible to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties ( id., citing Soviero Bros. Contr. Corp. v City of New York, 286 AD 435 [1st Dept 1955]).
To be sure, there are exceptions to the rule in Clark-Fitzpatrick, supra. A plaintiff may plead quantum meruit as an alternative to breach of contract if (1) the validity of the contract is disputed ( Farash v Sykes Datatronics, Inc., 59 NY2d 500, 503-504), or (2) where the defendant wrongfully has prevented the plaintiff's performance of a written agreement ( Randall v Guido, 238 AD2d 164, 164 [1st Dept 1997]).
Here, Granite argues that because a valid and enforceable contract exists, as pleaded by Mascon, the claim for quantum meruit must fail. Mascon argues that it is permitted to plead in the alternative, and that because it is not undisputed that the Mascon fully performed under the purported subcontractor agreement, dismissal is premature.
Although Mascon cites several cases for the proposition that a claim for quantum meruit is permitted to go forward where the defendant's breach of contract prevented the plaintiff from fully performing, Mascon fails to allege that its full performance was prevented by Granite's breach. Indeed, Mascon states that it "fully intends to demonstrate that it fully performed" (Rothman Affirmation, at 3). Moreover, each of the cases cited by Mascon is inapplicable. While not alleged here, full performance was prevented by the defendant's breach in each of the cases cited by Mascon ( Martin Iron Constr. Co. v Grace Indus., Inc., 14 AD34 495, 496 [2nd Dept 2005] [after defendant's breach of contract, plaintiff was permitted to abandon any claim on or under the contract and sue in quantum meruit]; MCK Bldg. Assocs. v St. Lawrence Univ., 301 AD2d 726 [3rd Dept 2003] [defendant breached because contract was terminated prior to completion, therefore, quantum meruit is appropriate]; MMG Group, Inc. v Planned Mgmt. Constr. Corp., 294 AD2d 284 [1st Dept 2002] [defendant breached its contract with plaintiff]; Paterno Sons, Inc. v New Windsor, 43 AD2d 863, 864 [2nd Dept 1974] [defendant's failure to make periodic payments due under the contract constituted a breach, thus, entitling plaintiff to regard the contract as terminated]). Accordingly, because Mascon fails to allege that the defendant's breach of contract prevented Mascon from fully performing, Mascon offers no basis to apply the exception it cites. Furthermore, because Mascon fails to allege that any other exception applies, Mascon fails to allege sufficient grounds to plead in the alternative.
"Endeavoring to enforce one's right to damages under a valid contract that expressly governs the subject at issue is simply irreconcilable with rescinding or 'unmaking' it from beginning and suing in quantum meruit; because plaintiff 'chose not to rescind the agreement,' his recovery was limited by terms of his express contract" ( Reilly v Natwest Mkts. Group Inc., 181 F3d 253, 264 [2nd Cir 1999] [internal quotation marks and citations omitted]).
Additionally, Mascon attempts to insulate its cause of action for quantum meruit from the preclusive effect of the Clark-Fitzpatrick, supra, by not incorporating the allegations that Mascon fully performed under the contract ( see Compl ¶ 11 ["Mascon entered upon the performance of the Subcontract, and duly performed all of the terms and conditions thereof on its part to be performed."]). Although it offers no basis in law to support its argument, Mascon urges the Court to read each cause of action in isolation. However,
[o]n a motion to dismiss a complaint for failure to state a cause of action, the complaint must be liberally construed in the light most favorable to the plaintiff. The court must accept the facts alleged in the complaint, and reasonable inferences therefrom, as true, and determine whether the facts as alleged fit within any cognizable legal theory; in doing so, the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint.
( N. Y. State Ass'n of Tobacco Candy Distribs. v City of New York, 3 Misc. 3d 876, 880 [Sup Ct New York County 2003] [emphasis added]). Just as the court in Arts4All, Ltd. v Hancock reasoned that "[i]t would be overly formalistic to dismiss the first cause of action on the ground that it does not repeat and reallege [certain] paragraphs," here, it would be overly formalistic to ignore the allegations under the breach of contract cause of action, but not repeated and not alleged under the quantum meruit cause of action ( 5 AD3d 106, 110 [1st Dept 2004] [citing CPLR 3026]). Under these circumstances, the Court finds that by alleging that it has fully performed under its breach of contract cause of action, Mascon brings its quantum meruit cause of action within the ambit of Clark-Fitzpatrick, supra. Accordingly, dismissal of the quantum meruit cause of action is warranted.
Moreover, Mascon speculates that Granite seeks to first dismiss the quantum meruit claim, then argue that Mascon failed to fully perform on the Subcontract to prevail in dismissing the breach of contract cause of action (see Rothman Affirmation, at 5 ["Granite is apparently seeking to dismiss the quantum meruit claim so that it can then attempt to demonstrate that the subcontract was not completed without having to face being sued in quantum meruit in the event that plaintiff is able to demonstrate that it [Mascon] did not fully complete as a result of Granite's breach of the subcontract"]). Thus, Mascon indicates that if it fails to prove full performance, it will attempt to prove that performance was not fully completed because of Granite's breach. In order to prove either argument, Mascon must set forth allegations to support its argument. To that end, alleging that Mascon fully performed and that Granite prevented Mascon from fully performing is wholly inconsistent. Accordingly, the internal inconsistency in pleading both breach of contract and quantum meruit further militates dismissal of the quantum meruit cause of action.
CONCLUSION
Therefore, based on the foregoing, it is hereby
ORDERED that defendant's motion to dismiss is granted, and the second cause of action is dismissed.