Summary
holding that the existence of an express contract between a subcontractor and supplier governing the subject matter precluded the plaintiff from maintaining a quasi contract cause of action against the general contractor or owners
Summary of this case from Mac Felder, Inc. v. Emerald Green Grp., LLCOpinion
May 11, 1992
Appeal from the Supreme Court, Queens County (Dunkin, J.).
Ordered that the order is reversed insofar as appealed, on the law, with costs, and the appellants' motion to dismiss the second cause of action of the complaint for failure to state a cause of action is granted.
The plaintiff agreed to manufacture and supply certain goods for the defendant Sigmund London, Inc. (hereinafter London) in connection with a construction project on which London was a subcontractor. The defendant Herbert Construction Co., Inc. (hereinafter Herbert) was the general contractor on the construction project, and the defendants Kaufman Astoria Studios, Inc. and Astoria Studios Limited Partnership II were the owners who hired Herbert.
The plaintiff delivered the goods ordered by London and they were subsequently installed at the premises, but London never paid the plaintiff. The plaintiff eventually brought the instant action against, inter alia, Herbert and the owners, seeking recovery for the goods it delivered to London, and alleging that they were unjustly enriched at its expense. Herbert and the owners moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss so much of the complaint as was asserted against them, to wit, the second cause of action.
The court improperly denied that branch of the motion which was to dismiss the second cause of action sounding in unjust enrichment. It is well settled that in order to recover under a theory of quasi contract, a plaintiff must be able to prove that performance was rendered for the defendant, resulting in its unjust enrichment (see, Kagan v. K-Tel Entertainment, 172 A.D.2d 375, 376). That Herbert and the owners consented to the improvements provided by the plaintiff and accepted the benefits does not render them liable to the plaintiff (see, Sybelle Carpet Linoleum v. East End Collaborative, 167 A.D.2d 535, 536; Contelmo's Sand Gravel v. J J Milano, 96 A.D.2d 1090, 1091). Here, the plaintiff's pleadings fail to allege, and there is nothing in the record to establish, that Herbert or the owners were in privity of contract with London, or that they, by their actions, assumed an obligation to pay for the goods ordered by London. The plaintiff's sole remedy is against London, and therefore, the court should have granted the motion to dismiss the second cause of action for failure to state a cause of action (see, Perma Pave Contr. Corp. v. Paerdegat Boat Racquet Club, 156 A.D.2d 550, 551).
Furthermore, the existence of an express contract between the plaintiff and London governing the particular subject matter of its claim for unjust enrichment precludes the plaintiff from maintaining a cause of action sounding in quasi contract against Herbert or the owners (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388; Julien J. Studley, Inc. v. New York News, 70 N.Y.2d 628). Bracken, J.P., Sullivan, Eiber and Pizzuto, JJ., concur.