ADLER WINDOWS INC v. FREIDHEIM (2024)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about October 10, 2023, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the complaint, sua sponte dismissed defendant's counterclaim, and denied defendant's request for attorneys' fees, unanimously modified, on the law, to reinstate plaintiff's breach of contract cause of action and defendant's counterclaim, and otherwise affirmed, without costs.

Supreme Court should have denied defendant's motion for summary judgment with respect to plaintiff's breach of contract cause of action, as plaintiff sufficiently raised issues of fact with respect to damages (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]).  During discovery, plaintiff provided interrogatory responses and produced admissible documentary and testimonial evidence regarding the contract price, plaintiff's estimated costs of performance, and defendant's nonpayment.  In addition plaintiff's director of business development, testified at his deposition that the proffered documents were generated in the ordinary course of business, and he gave details regarding the project costs contained within the documents.  Since the parties entered into a fixed-price construction contract where defendant allegedly prevented performance, plaintiff adequately proffered evidence raising a factual issue about damages (see New Era Homes Corp. v. Forster, 299 N.Y. 303, 307, 86 N.E.2d 757 [1949]).

Supreme Court properly dismissed plaintiff's remaining claims of quantum meruit and unjust enrichment, as plaintiff never produced evidence during discovery quantifying its actual job costs to support the quantum meruit cause of action in response to defendant's discovery demands (see Najjar Indus. v. City of New York, 87 A.D.2d 329, 331–332, 451 N.Y.S.2d 410 [1st Dept. 1982], affd 68 N.Y.2d 943, 510 N.Y.S.2d 82, 502 N.E.2d 997 [1986]).  Moreover, despite a discovery demand, plaintiff failed to furnish evidence quantifying “the reasonable value of services rendered” supporting its unjust enrichment cause of action (Fallon v. McKeon, 230 A.D.2d 629, 630, 646 N.Y.S.2d 109 [1st Dept. 1996]).

Supreme Court should not have sua sponte dismissed defendant's counterclaim, seeking damages for breach of contract.  Plaintiff did not cross-move to dismiss the counterclaim and neither party raised the issue to allow the court to search the record in addressing it (see New Hampshire Ins. Co. v. MF Global, Inc., 108 A.D.3d 463, 467, 970 N.Y.S.2d 16 [1st Dept. 2013]).

Defendant's challenge to the denial of his request for attorneys' fees is deemed abandoned (see Mendoza v. Akerman Senterfitt LLP, 128 A.D.3d 480, 483, 10 N.Y.S.3d 18 [1st Dept. 2015];  Shakespeare v. Fine Arts Dev. Labs. Co-op., Inc., 71 A.D.2d 592, 592, 418 N.Y.S.2d 425 [1st Dept. 1979]).