First Class Concrete Corp., respondent, v. Jeffrey M. Rosenblum, et al., appellants.

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Supreme Court, Appellate Division, Second Department, New York.

First Class Concrete Corp., respondent, v. Jeffrey M. Rosenblum, et al., appellants.

2016–09344 (Index No. 20734/08)

Decided: December 26, 2018

MARK C. DILLON, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D. DUFFY, JJ. Jeffrey M. Rosenblum, P.C., Great Neck, N.Y. (Vincent Chirico of counsel), for appellants.

Argued—September 11, 2018

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), dated August 9, 2016.  The order denied the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for breach of contract arising out of work the plaintiff contends that it performed at the defendants' request for which it was not paid.  The plaintiff alleges that the defendants failed to pay for materials and services it provided in connection with work it performed on the defendants' property.  The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint for failure to state a cause of action.  In an order dated August 9, 2016, the Supreme Court denied the defendants' motion.  The defendants appeal.

We also agree with the Supreme Court's denial of those branches of the defendants' motion which were to dismiss the causes of action to recover for unjust enrichment and in quantum meruit.  “Quantum meruit and unjust enrichment theories are equitable in nature, and are appropriate only if there is no valid and enforceable contract between the parties covering the dispute at issue” (Stephan B. Gleich & Assoc. v. Gritsipis, 87 AD3d 216, 223).  Since the defendants disputed the existence and enforceability of a contract covering the dispute at issue, the plaintiff was entitled to allege causes of action to recover for unjust enrichment and in quantum meruit as alternative theories of relief (see Thompson v. Horowitz, 141 AD3d 642, 643–644;  AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 AD3d 6, 20), and the complaint sufficiently states those causes of action (see Snitovsky v Forest Hills Orthopedic Group, P.C., 44 AD3d 845, 845–846).

The plaintiff also sufficiently stated a cause of action to recover on an account stated.  “An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation” (Caring Professionals, Inc. v. Landa, 152 AD3d 738, 739).  Here, the plaintiff alleged, inter alia, that the defendants retained and accepted, without objection, various invoices setting forth the amounts owed for materials and services he provided.  Viewed in the light most favorable to the plaintiff, the second amended complaint sufficiently states a cause of action to recover on an account stated (see Fleetwood Agency, Inc. v. Verde Elec. Corp., 85 AD3d 850, 851).

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

DILLON, J.P., ROMAN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court