LEROY CALLENDER v. FIELDMAN (1998)

Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered June 23, 1997, which, to the extent appealed from, failed to award plaintiff quantum meruit damages and brings up for review an order of the same Court and Justice entered June 10, 1997, granting defendants' motion to set aside the jury's verdict awarding $167,965.82 damages in quantum meruit, unanimously reversed, on the law, with costs, the quantum meruit verdict reinstated, with plaintiff to be awarded interest from June 27, 1990.   Appeal from order, same court and Justice, entered June 10, 1997, unanimously dismissed, without costs, as subsumed within the appeal from the aforesaid judgment.

 The trial court erred in setting aside the quantum meruit award for services rendered outside of the oral agreement, since such an award is warranted here.  Clark-Fitzpatrick, Inc. v. Long Island Railroad Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190, and Unisys Corp. v. Hercules, Inc., 224 A.D.2d 365, 638 N.Y.S.2d 461, state the general rule that:

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 (70 N.Y.2d at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190)

However, where:

there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue, plaintiff may proceed upon a theory of quantum meruit and will not be required to elect his or her remedies (Joseph Sternberg, Inc. v. Walber 36th Street Assoc., 187 A.D.2d 225, 228, 594 N.Y.S.2d 144;  see also, Fennell & Minkoff v. Wall Street Transcript Corp., 239 A.D.2d 160, 657 N.Y.S.2d 46;  Charles J. Hecht, P.C. v. Clowes, 224 A.D.2d 312, 638 N.Y.S.2d 42).

Here, there were hotly disputed issues as to the scope of the work agreed to in the oral contract and the scope of the additional work requested thereafter, and as to the factors to be considered in determining plaintiff's compensation.

The trial court's view that we overruled Sternberg in Unisys was incorrect, especially considering that we carefully distinguished Sternberg (Unisys at 369, 638 N.Y.S.2d 461) and that we have relied upon it subsequently (see e.g., Randall v. Guido, 238 A.D.2d 164, 655 N.Y.S.2d 527;  Eric Solstein Productions v. Rabanne, 236 A.D.2d 216, 653 N.Y.S.2d 325).

The trial record supports the jury's determination that plaintiff was entitled to the reasonable value of its services.   When viewed in the light most favorable to plaintiff (see, Baker v. Turner Constr. Co, 200 A.D.2d 525, 526, 607 N.Y.S.2d 10), the evidence shows that the parties entered into an oral agreement whereby plaintiff agreed to provide structural plans for the “Main Pavilion Addition”, comprising 75,000 sq. ft., for a fee of $145,000.   The evidence also allowed the jury to find that the balance of the structural work performed by plaintiff, i.e., the operating room addition and six sets of plans over seven months, was never the subject of the parties' oral agreement and was valued at $167,965.82, the amount of the final invoice.   In rendering its award, the jury simply took the amount it determined was due plaintiff and divided it between the theories of recovery as it understood them to be presented in accordance with the evidence.

Finally, we find that plaintiff has established its entitlement to pre-judgment interest on the quantum meruit verdict (CPLR 5001[c];  Kleartone Transparent Prods. Co. v. Dun & Bradstreet, 118 A.D.2d 832, 500 N.Y.S.2d 316), and that such interest should be computed from June 27, 1990, the date plaintiff demanded payment on its final invoice.

MEMORANDUM DECISION.