MARINE BULKHEADING INC v. Costco Wholesale Corporation, respondent. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Kerry J. Ward, J.), dated August 1, 2024.  The order, insofar as appealed from, denied the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Costco Wholesale Corporation (hereinafter Costco) is the owner of certain property located in Brooklyn (hereinafter the property).  The defendant Ibex Construction Company, LLC (hereinafter Ibex), served as general contractor in connection with the construction of a store on the property (hereinafter the project).  Ibex entered into an agreement with the plaintiff pursuant to which the plaintiff was to install foundation piles at the project and to perform related load testing for an agreed-upon sum (hereinafter the contract).  Allegedly, the plaintiff fully performed its obligations pursuant to the contract, however, Ibex failed to make full payment under the contract, leaving a balance due and owing.  The plaintiff filed a mechanic's lien against the property.  In 2016, the plaintiff commenced the instant action against Ibex and Costco, among others, to foreclose the mechanic's lien and to recover based upon an account stated and damages for breach of contract.

In June 2024, the plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint to allege a cause of action to recover in quantum meruit against Costco.  Costco opposed the cross-motion on the ground that the contract barred the plaintiff from recovering in quantum meruit.  In an order dated August 1, 2024, the Supreme Court, among other things, denied the cross-motion.  The plaintiff appeals.

“A party may amend his or her pleading ․ at any time by leave of court or by stipulation of all parties” (CPLR 3025[b] ).  “Whether to grant leave to amend is within the trial court's discretion” (Deutsche Bank Natl. Trust Co. v. David, 242 A.D.3d 1056, 1057, 243 N.Y.S.3d 754;  see Ruland v. Leibowitz, 209 A.D.3d 1051, 1052, 176 N.Y.S.3d 716;  Mulle v. Lexington Ins. Co., 198 A.D.3d 908, 909–910, 157 N.Y.S.3d 29).  “ ‘[L]eave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party’ ” (Deutsche Bank Natl. Trust Co. v. David, 242 A.D.3d at 1057, 243 N.Y.S.3d 754, quoting DLJ Mtge. Capital, Inc. v. David, 147 A.D.3d 1024, 1025, 48 N.Y.S.3d 234;  see First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d 639, 641, 182 N.Y.S.3d 274).  “ ‘The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion’ ” (Deutsche Bank Natl. Trust Co. v. David, 242 A.D.3d at 1057, 243 N.Y.S.3d 754, quoting Shields v. Darpoh, 207 A.D.3d 586, 587, 169 N.Y.S.3d 850;  see First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 A.D.3d at 641, 182 N.Y.S.3d 274).

“ ‘[A] quasi contract is created by operation of law in the absence of an agreement between the parties to avoid injustice’ ” (Bardy v. Bonnem, 239 A.D.3d 809, 811, 238 N.Y.S.3d 422, quoting Auquilla v. Villa, 240 A.D.3d 48, 57, 233 N.Y.S.3d 79).  “ ‘To establish a quantum meruit claim, the plaintiff must show:  (1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered’ ” (id. at 812, 238 N.Y.S.3d 422, quoting Whitfield v. Law Enforcement Empls. Benevolent Assn., 237 A.D.3d 1139, 1141, 233 N.Y.S.3d 615).  “The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter” (Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190;  see Auquilla v. Villa, 240 A.D.3d at 57, 233 N.Y.S.3d 79;  Knox v. Countrywide Home Loans, Inc., 205 A.D.3d 792, 793, 169 N.Y.S.3d 101).

Here, the Supreme Court correctly denied the cross-motion, as the record reflects that a contract exists between the plaintiff and Ibex pertaining to the work that the plaintiff performed at the project.  While Costco is not a party to that contract, “the law is well settled that a nonsignatory to a contract cannot be held liable [in quantum meruit] where there is an express contract covering the same subject matter” (Wong v. Wong, 203 A.D.3d 451, 452, 164 N.Y.S.3d 583;  see Auquilla v. Villa, 240 A.D.3d at 59, 233 N.Y.S.3d 79;  Turan v. Union Modular Homes, LLC, 234 A.D.3d 1063, 1068, 225 N.Y.S.3d 733;  Board of Mgrs. of the 15 Union Sq. W. Condominium v. Azogui, 220 A.D.3d 405, 405, 197 N.Y.S.3d 29).  We have specifically held that “a property owner who contracts with a general contractor does not become liable to a subcontractor on a quasi contract theory unless it expressly consents to pay for the subcontractor's performance.  The owner's mere consent to and acceptance of improvements placed on his [or her] property by the subcontractor, without more, does not render it liable to the subcontractor” (Perma Pave Contr. Corp. v. Paerdegat Boat & Racquet Club, 156 A.D.2d 550, 551, 549 N.Y.S.2d 57 [citation omitted];  see Contelmo's Sand & Gravel v. J & J Milano, 96 A.D.2d 1090, 1090, 467 N.Y.S.2d 55).  Accordingly, because the plaintiff has not alleged that Costco agreed to assume any obligation to it, the court correctly denied the cross-motion (cf.  East Coast Mines & Materials Corp. v. Golf Course Props. Co., 228 A.D.2d 545, 547, 644 N.Y.S.2d 326).

The parties' remaining contentions are either not properly before this Court or without merit.

DILLON, J.P., DOWLING, LANDICINO and MCCORMACK, JJ., concur.