SUPREME COURT-STATE OF NEW YORK

Transcription

1 Index No.: 3646/00 3 SUPREME COURT-STATE OF NEW YORK I.A.S. PART 2% NASSAU COUNTY PRESENT: HON. LEONARD B. AUSTIN Justice of the Supreme Court Motion R/D: Submission Date: Motion Sequence No.: OOlNOT D CABLE PRO COMMUNICATIONS INC., -against- Plaintiff, Attornev for Plaintiff Fred Grafstein, P.C Deer Park Avenue Deer Park, NY RAE MAR INSTALLATIONS, INC. and TIME WARNER CABLE OF NEW YORK CITY, Defendant. Attorney for Defendant (Time Warner) Newman Fitch Altheim Myers, P.C. 14 Wall Street New York, NY Defendant Time Warner s Notice of Motion; Affirmation of Charles W. Kreines, Esq.; Plaintiffs Affirmation in Opposition; Affirmation of Rose Rapisardi; Plaintiffs Amended Verified Complaint; Sur-Reply Affirmation of Ivy Alexander. Esq.; Defendant s Memorandum of Law; and Defendant s Reply Affirmation. Attorney for Defendant (Rae Mar) (No appearance) South Broadway Hicksville, NY Upon the following papers read on Defendant Time Warner Cable of New York s motion to dismiss the complaint pursuant to CPLR 3211 (a)(7): On this motion to dismiss; the question presented is whether a subcontractor may seek damages against an owner for unjust enrichment when there is no privity of 1

2 contract between them, and there is no specific promise to pay the subcontractor by the owner. For the reasons set forth herein, the question must be answered in the negative. In April, 1998, Defendant Rae Mar Installations, Inc. ( Rae Mar ) contracted to hire Plaintiff as a subcontractor to facilitate a contract between Rae Mar and Defendant Time Warner Cable of New York City ( Time Warner ). Plaintiff supplied labor and supplies in the course of upgrading and installing cable systems in various premises around New York City. In its complaint, Plaintiff alleges three causes of action. The first two are against Rae Mar for its failure to pay Plaintiff pursuant to the contract and for an account stated. Those causes of action are not the subject of this motion. The third cause of action is solely against Time Warner. That cause of action is based upon a theory of unjust enrichment arising from Plaintiffs performance of its contract with Rae Mar. It is that cause of action against which Time Warner now moves. There was no contract between Plaintiff and Time Warner. Plaintiff, however, alleges that Time Warner would be unjustly enriched by virtue of its efforts in performing the contract with Rae Mar. On March 24, 2000, Time Warner filed a timely motion to dismiss the third cause of action and to preclude any future cross-claim against it. Time Warner argues that an owner who receives the benefit of a subcontractor5 services pursuant to a contractual obligation with the general contractor cannot be held liable for the work done by the subcontractor in the absence 2

3 of the owner s agreement, in some way; to pay for those services. Time Warner argues that Plaintiffs claim for unjust enrichment fails as a matter of law because (a) Plaintiffs pleadings concede that Time Warner was not in privity of contract with Plaintiff; and (b) Time Warner did not assume the obligation to pay Plaintiff. There can be no action against a company in Time Warner s position here because: (1) that company did not assume an obligation to pay for the goods and services provided; and (2) if there is an express contract between a plaintiff and a company that ordered good and services, there can be no quasi-contract cause of action against a third party which was not a party to that contract. In opposition to this dismissal motion, Plaintiff relies on Professor Siegel s treatise New York Practice. Plaintiff claims that Time Warner s construction of the complaint was too narrow for New York standards, and that on a motion to dismiss, the pleader is entitled to every favorable inference that might be drawn. Siegel, New York Practice 265, p (3d ed. 1999). See also, Westhill Experts, Ltd. v. Pope, 12 N.Y.2d 491,240 N.Y.S.2d 961 (1963). Subsequent to the service of the complaint herein, Plaintiff amended complaint paragraph fifteen (15) to include an allegation that Plaintiff s services were performed based not only on its agreement with Rae Mar, but also based upon the conduct of Time Warner. The amended complaint contains no explanation or description of the conduct of Time Warner which caused Plaintiffs reliance or which gave rise to Time Warner s liability. However, in her affidavit in. opposition to. the dismissal motion, :.Rose Rapisardi, president of Cable Pro Communications Inc., averred that Michael Rapisardi, Vice President of Cable Pro 3

4 Communications Inc. met with Paul Fucci, Vice President of Time Warner Construction, who allegedly agreed to expedite payments to Cable Pro. That meeting occurred in December of On January 5, 2000, Michael Rapisardi met with Time Warner Project Director Michael Darnhauer, who allegedly stated that he would review the situation and thereafter payments to the plaintiff would be forthcoming. At that meeting, the promise of payment by Time Warner s representative was not specifically referable to payment directly to Plaintiff. Instead, Rose Rapisardi s artfully drawn affirmation suggests that Michael Rapisardi was told that when Time Warner was satisfied, it would pay its contractor, Rae Mar; not Plaintiff with whom it had no privity. Further, Ms. Rapisardi s double hearsay statements intended to save the complaint against Time Warner fails inasmuch as Mr. Rapisardi s personal representation of the purported meeting is glaringly absent. Ms. Rapisardi s statement, under oath, depicts statements told to Michael Rapisardi. She was not present at these meetings. There are no exact statements quoting the words used by Time Warner s representatives. Without such language it is impossible for this Court to conclude that Time Warner assumed the obligation originally held by Rae Mar. Finally, Ms. Rapisardi claims that there were other meetings at which Time Warner similarly made statements that they would make payments. Likewise, no promise to pay Plaintiff directly can be gleaned. from any of these cited meetings, nor, given the existence of the Rae Mar contract, could such a promise be inferred. 4

5 Significantly, Plaintiff has failed to produce a copy of the Rae Mar/Time Warner contract from which its purported rights flow. Had the contract been produced, two facts would have, no doubt, emerged. First, it would have been shown that the construction supervisors who made those statements Time Warner. Second, the right to payment from Time were not authorized to bind Warner, upon its satisfaction with the work of Rae Mar, was Rae Mar s alone. Plaintiff suggests an oral contract with Time Warner which is governed by the Statute of Frauds. General Obligations Law See, Wilson v. LaVan, 22 N.Y.2d 131, 291 N.Y.S.2d 344 (1968). While substantial performance under an oral contract obviates the need for a writing to render the agreement enforceable, the performance must be unequivocally referable to the oral agreement. See, Messner Vetere Beroer McNamee Schmetterer Euro RCSG Inc. v. Aeqis Group PIG, 93 N.Y.2d 229, 689 N.Y.S.2d 674 (1999); and Rose v. Spa Realtv Assocs., 42 N.Y.2d 338, 397 N.Y.S.2d 922 (1977). Here, Plaintiffs arrangement with Rae Mar negates the possibility of such finding. In determining a motion to dismiss, the Court must view all allegations set forth in the challenged pleading in a light most favorable to the non-moving party. See, Rotanelli v. Madden, 172 A.D.2d 815, 569 N.Y.S.2d 187 (2d Dept. 1991). In determining whether a cause of action has been pleaded, the Court may look beyond the pleadings and may also rely on sworn statements and exhibits submitted in opposition to the dismissal motion to determine whether a cognizable cause of action, has beenstated.. See, Cron v. Harqro Fabrics, Inc.; 91 N.Y.2d.362, 670 N.Y.S.2d 973 (1998).

6 Here, giving Plaintiff every benefit of the doubt, the third cause of action cannot be sustained. The amended complaint and the Rapisardi affidavit simply are insufficient to state a cause of action for unjust enrichment. To plead successfully a claim for unjust enrichment, one must plead (1) that Defendant was enriched (2) at Plaintiffs expense and (3) that equity and good conscience do not permit Defendant to retain what Plaintiff seeks to recover. See, Lake Minnewaska Mountain Houses, Inc. v. Rekis, 259 A.D.2d 797, 686 N.Y.S.2d 186 (3d Dept. 1999). The Court must look to see whether the benefit was conferred by reason of a mistake of law or fact, whether there was a change of position of Defendant and whether Defendant s conduct was tortious or fraudulent. See, Paramount Film Distributinq Corp. v. State of New York, 30 N.Y.2d 415, 334 N.Y.S.2d 388 (1972), cerf. den., 414 U.S. 829, 945 S.Ct. 57 (1973). Here, Defendant can only be seen as attempting to achieve the benefit of its contract with Rae Mar. By any view, legal or equitable, the facts of this case, even viewed from Plaintiffs best perspective, do not rise to the level of a valid, sustainable cause of action against Time Warner. Simply put, a subcontractor or supplier cannot recover against an owner who is only in privity with his general contractor in the absence of a clear affirmative act on the part of the owner agreeing to directly pay the subcontractor. Svbelle Carpet and Linoleum of Southampton. Inc. v. East End Collaborative, Inc., 167 A.D.2d 535, 562 N.Y.S.2d 205 (2d Dept. 1990). See also, Faist v. Garsfip Constr. Corp., 220 A.D.2d 718, 633 N.Y.S.2d 327 (2d Dept. 1995). Plaintiffs sole remedy is under its contract with Rae Mar. See, Metropolitan-Electric Mfo. Co. v. Herbert Constr. Co., Inc., 183 6

7 A.D.2d 758, 583 N.Y.S.2d 497 (2d Dept. 1992). The third cause of action cannot stand. Inasmuch as Plaintiff did not seek leave to replead, same cannot be granted. See, Bardere v.zatir, 63 N.Y.2d 850, 482 N.Y.S.2d 261 (1984). However, even if leave to replead were sought, such request could not be granted here since no viable claim against Time Warner could be properly pled. CPLR 321 l(e); See also, Allen v. Murrav House Owners Corp., 130 A.D.2d 356, 515 N.Y.S.2d 18 (lst Dept. 1987). Therefore, it is, ORDERED, that Defendant s motion to dismiss is granted; and it is, ORDERED, that counsel for Plaintiff and Rae Mar shall appear on August 2, 2000 at 9:15 a.m. for a preliminary conference. This constitutes the decision and Order of the Court. Dated:Mineola, NY June 30,200O Hon. LEONARD B. AUSTIN, J.S.C. 7