Opinion
21195/2011E
11-04-2011
Neil Power and N. Power Painting Inc., Plaintiff, v. Darren Henault Interiors Inc. and Duce Construction Corp., Defendants.
Attorney for Plaintiffs: Timothy Duignan, Esq. Attorney for Defendant Darren Henault Interiors Inc.: Steven G. Sonet, Esq. Attorney for Defendant Duce Construction Corp.: Jason S. Samuels, Esq.
Attorney for Plaintiffs: Timothy Duignan, Esq.
Attorney for Defendant Darren Henault Interiors Inc.: Steven G. Sonet, Esq.
Attorney for Defendant Duce Construction Corp.: Jason S. Samuels, Esq.
Alexander W. Hunter Jr., J.
The motion by defendant Darren Henault Interiors Inc. (hereinafter "DHI") for an order pursuant to C.P.L.R. §3211(a)(7), dismissing plaintiffs' complaint against it, is denied. The cross-motion by defendant Duce Construction Corp. (hereinafter "Duce"), for an order dismissing plaintiffs' complaint as against it, is likewise, denied.
The cause of action is for quasi-contractual relief against defendants DHI and Duce for unjust enrichment. Plaintiffs seek to have defendants held jointly and severally liable for equitable relief after plaintiffs provided painting services to the defendants for no payment, based upon a promise and reasonable belief that both defendants would provide him paid employment in the future. Plaintiffs allege in their complaint that defendants have acted in bad-faith and have been unjustly enriched by the work and efforts of the plaintiffs, which they knowingly accepted. (Plaintiffs' complaint, para. 5).
Defendant DHI moves to dismiss plaintiffs' complaint against it on the ground that the complaint fails to state a cause of action against it. DHI submits, inter alia, copies of e-mails between DHI and plaintiffs as well as Duce and plaintiffs. According to DHI, plaintiffs performed painting services at the 2010 Kips Bay Decorating Showhouse (hereinafter "Showhouse"). The Showhouse is a charitable event which benefits the Kips Bay Boys and Girls Clubs. DHI was one of several designers who designed a room within the residence located at 165 East 63rd Street in New York County, without compensation. Defendant Duce was employed as a contractor on that job and it is alleged that Duce approached plaintiffs to provide painting services at the Showhouse. Plaintiffs were advised that the painting job would not be compensated but they allege in their complaint that they were assured by Duce that it would be worth it for each of them to work for free on the charity project since DHI would then engage Duce on a future project on West 70th Street and Duce would then engage plaintiffs as painting subcontractors on that project.
DHI points out that plaintiffs allege, in their complaint, that no contract was ever entered into between DHI and plaintiffs or that DHI ever promised that plaintiffs would work on a future project. DHI argues that the verified complaint does not allege that DHI requested that plaintiffs perform services at the Showhouse, promised payment for services to be performed by plaintiffs at the Showhouse or guaranteed that DHI would engage plaintiffs to perform work on any future DHI project.
DHI acknowledges that courts in New York State recognize that in the absence of a contract, in the interest of equity, a party may be obligated to pay money to avoid unjust enrichment. However, DHI cites to case law from the Appellate Division, Second Department, which holds that to state a cause of action seeking quantum meruit for quasi contract, a plaintiff must allege facts which detail that plaintiff expended efforts to its detriment at the request of the defendant. Bare conclusory assertions that defendant derives any benefit from plaintiff's work are insufficient to sustain a cause of action for quantum meruit. Moreover, there can be no award for damages in quantum meruit where a plaintiff has performed services without any expectation of or agreement for compensation. DHI asserts that since no contract was ever entered into with respect to the performance of services at the Showhouse and plaintiffs performed the work knowing they would not receive compensation, there is no cause of action against DHI. Moreover, any purported oral promise for work in the future for which plaintiffs would be paid, was made by Duce and not DHI. Accordingly, plaintiffs' complaint should be dismissed against DHI.
Duce cross-moves to dismiss plaintiffs' complaint against it and partially opposes DHI's motion to dismiss plaintiffs' complaint. Duce contends that plaintiffs fail to allege any cognizable cause of action against Duce. Duce refers to paragraph eleven (11) of plaintiffs' complaint wherein they assert that defendant DHI told Duce and plaintiffs, "I am going to need you guys for Kips Bay." (Plaintiffs' complaint, para. 11). Moreover, plaintiffs, in their complaint, allege that they submitted a proposal of $13,500 to Duce with respect to the Showroom project. However, the proposal attached to the complaint appears to be an un-executed proposal from plaintiffs for a purported project listed as "Shapiro-Grymes residence" at 60 West 70th Street, not a proposal for the Showhouse project.
Duce argues that plaintiffs do not allege in their complaint that Duce consented to or agreed in any manner to an alleged proposal submitted by plaintiffs. Moreover, plaintiffs admit in their complaint that Duce informed them that the Showhouse project "was not a paying job" and that Duce assured plaintiffs that it would be "worth it for [them] in the long run to eat this one, because if we do it, Darren will give us the job he has coming up on West 70th Street." (Complaint, para. 14). Duce further argues that in order for plaintiffs to prevail on a theory of unjust enrichment, it is not enough that a defendant received a benefit from the activities of the plaintiff. If services were performed at the behest of someone other than the defendant, the plaintiff must look to that person for recovery. Duce alleges that any work performed by plaintiffs at the Showhouse project was not performed at the behest of Duce since plaintiffs themselves allege in their complaint that the work performed by them was at the behest of DHI.
Moreover, Duce argues that plaintiffs' complaint contradicts the allegations made by DHI in their motion to dismiss because in plaintiffs' complaint, they claim that DHI would be providing the future project at West 70th Street, not Duce. Therefore, since it was DHI and not Duce that requested plaintiffs to perform the work on the Showhouse project, the complaint should be dismissed against Duce.
Plaintiffs oppose the motion by DHI and argue that e-mails between Heather Law, secretary for Darren Henault of DHI, and plaintiff Neil Power, contradict any allegation by DHI that the work plaintiffs performed was "merely preparatory to performance." The e-mail forwards instructions to plaintiffs on the painting that needed to be performed to restore the showroom to its previous condition. Thus, plaintiffs allege that the e-mail raises issues of fact that would lead one to believe that Darren at DHI did directly request plaintiffs to perform the work for DHI's benefit. Moreover, the e-mail suggests that plaintiffs performed the work of creating the showroom to defendant DHI's satisfaction since DHI contacted plaintiffs after the showroom was complete to handle the restoration. Furthermore, Darren, from DHI, acknowledged in an e-mail to plaintiff Neil Power, "we all discussed the hope and possibility of work in the future." (Plaintiffs' Exhibit A).
Plaintiffs cite to federal case law and contend that to bring a claim of unjust enrichment, the requirements are that: a) defendant was enriched; b) the enrichment was at plaintiff's expense; c) the circumstances were such that equity and good conscience require the defendants to make restitution. ( Golden Pacific Bancorp v. F.D.I.C., 273 F.3d 509 (2nd Cir. 2001)). Plaintiffs claim that DHI was enriched, having received a finished showroom on the Showhouse project for which Darren from DHI received positive publicity and plaintiffs contributed time and effort before, during and after the project in order to complete the project to the parties' satisfaction. Plaintiffs assert that Darren from DHI, is a designer with over fifteen (15) years of experience and is well aware that contractors and subcontractors "do not work for free, or out of the kindness of their hearts" and it is "unconscionable, for a designer of Darren's accomplishments, to reasonably expect that Neil would work for him, at his company's direction, for absolutely no compensation whatsoever..." (Duignan Aff., para. 11( c)). Additionally, plaintiffs acknowledge that the proposal annexed to their moving papers was not the correct proposal for the Showhouse project and with their opposition papers, they annex a copy of the correct proposal for the Showhouse project.
In response to Duce's cross-motion, plaintiffs argue that Duce's assertion that plaintiffs were working at the behest of DHI is an attempt to divert blame to someone other than themselves, despite the fact that emails were sent directly from Duce to plaintiffs requesting performance at Duce's behest. Plaintiffs argue that both defendants mislead plaintiffs into believing that if they performed the work on the Showhouse project for no pay, plaintiffs would be rewarded with the lucrative project on West 70th Street. Plaintiffs contend that they have met the standard for bringing an action seeking quasi-contractual relief for unjust enrichment in that plaintiffs performed the work on the Showhouse project at Duces's direction and plaintiffs withdrew their demand for compensation and chose to forego other possible work from paying contractors in order to be available to complete the Showhouse project on Duce's behalf. Duce was given the "high paying" project at West 70th Street and in the interest of equity and good conscience, Duce should be obligated to compensate plaintiffs for their work since Duce did not hire plaintiffs as subcontractor on the West 70th Street project. Therefore, the motion and cross-motion to dismiss should be denied.
In reply, DHI reiterates that there is no cause of action asserted because there was no expectation of or agreement for compensation for the Showhouse project since it was a charity event and none of the participants whether interior designers, architects, contractors, subcontractors, painters or finishers received compensation. In response, plaintiffs assert that DHI did expect to be compensated first in the form of payment, then in the form of future work.
Duce, in reply argues that its cross-motion should be deemed a summary judgment motion and since plaintiffs only allege conclusory allegations without proof in admissible form, summary judgment should be granted in Duce's favor.
This court declines to "deem" Duce's cross-motion to dismiss plaintiffs' complaint a summary judgment motion and requesting same in reply papers is inappropriate.
C.P.L.R. §3211(a)(7) states that a party may move to dismiss one or more causes of action against it on the ground that the pleading fails to state a cause of action. It is well established that on a motion to dismiss pursuant to C.P.L.R. §3211, the court is to, "...accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory." Leon v. Martinez, 84 NY2d 83 (1994). The complaint should be liberally construed in favor of the plaintiff. Robinson v. Robinson , 303 AD2d 234, 235 (1st Dept. 2003). Moreover, on a motion to dismiss for failure to state a cause of action, it is not the function of the court to evaluate the merits of a case. Carbillano v. Ross, 108 AD2d 776 (2nd Dept. 1985).
In Georgia Malone & Co. v. Rieder, et al., 86 AD3d 406 (1st Dept. 2011), the court ruled that, "Unjust enrichment is a quasi-contract theory of recovery, and is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned'" (citations omitted). Id. at 408. The Court of Appeals in Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, (2011), stated, " The essential inquiry in an action for unjust enrichment...is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'...A plaintiff must show that (1) the other party was enriched, (2) at the party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered'" (citations omitted). Id. at 182.
In the case at bar, plaintiffs' complaint alleges that defendant DHI was enriched by having received a finished showroom at the Showhouse project for which he received positive publicity. Plaintiffs contributed their time and effort before, during and after the project and expended $13,500 in performing their services at the Showhouse. Moreover, the complaint alleges that plaintiffs, DHI and Duce discussed working together again on a future project, specifically, the project at West 70th Street. With respect to Duce, plaintiffs contend that the work performed on the Showhouse project was at Duce's direction and because of plaintiffs' efforts, Duce did not have to send one of its own men to paint the showroom or hire another sub-contractor to do the work plaintiffs performed. Based upon Duce's assurance that plaintiffs would be working with Duce and DHI on the more lucrative project at West 70th Street, plaintiffs withdrew their demand for compensation on the Showhouse project and chose to forego other possible paying work to complete the work at the Showhouse. However, Duce was given the project at West 70th Street by DHI but failed to hire plaintiffs as the subcontractor on the project as promised. Thus, a claim for unjust enrichment has been established against DHI and Duce.
The Court of Appeals, in EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11 (2005), stated that, "In the context of a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference...Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." (citations omitted). Id. at 19. The court herein must simply determine whether a cause of action was sufficiently stated. Accepting the facts as alleged in the complaint to be true and according plaintiffs the benefit of every possible inference, this court finds that plaintiffs have sufficiently stated a cause of action cognizable at law. Whether or not plaintiffs can ultimately establish their allegations is not a factor for this court to determine at this juncture.
Accordingly, the motion and cross-motion to dismiss are denied.
This constitutes the decision and order of the court.
J.S.C.