Civetta Mech., LLC v. AWL Indus., Inc.

Opinion

Civetta Mech., LLC v AWL Indus., Inc.

2026 NY Slip Op 05271

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Civetta Mechanical, LLC, respondent,

v

AWL Industries, Inc., appellant, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-13407, (Index No. 518104/23)

Cheryl E. Chambers, J.P.

Deborah A. Dowling

Lillian Wan

Lourdes M. Ventura, JJ.

Sesti Law Firm, P.C., White Plains, NY (Robert A. Sesti and Justin Tubelli of counsel), for appellant.

Grae & Grae, LLC, New York, NY (Previn A. Waran and Akansha Chandra of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant AWL Industries, Inc., appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated November 20, 2024. The order denied that defendant's motion pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendant AWL Industries, Inc., which were pursuant to CPLR 3211(a) to dismiss the third, sixth, and seventh causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, a subcontractor, commenced this action against the City of New York and AWL Industries, Inc. (hereinafter AWL), a general contractor. The second amended complaint alleged, inter alia, that the plaintiff and AWL entered into an agreement pursuant to which the plaintiff would perform plumbing and gas work on a public improvement construction project and that AWL breached the agreement by substituting another subcontractor in the plaintiff's place (first cause of action). In addition, the plaintiff asserted causes of action against AWL to recover damages for breach of the implied covenant of good faith and fair dealing (second cause of action) and unjust enrichment (third cause of action) and against AWL and the City to recover damages for breach of a prime contract between AWL and the City (sixth cause of action) and a violation of General Municipal Law § 101(5) (seventh cause of action).

After issue was joined, AWL moved pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint insofar as asserted against it. In an order dated November 20, 2024, the Supreme Court denied the motion. AWL appeals.

On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Farah v City of New [*2]York, 241 AD3d 1435, 1436). "In assessing a motion under CPLR 3211(a)(7), . . . a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d at 88; see 166-20 Union Turnpike, LLC v Tavak, LLC, 241 AD3d 1505). "Where evidentiary materials are considered in support of a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the court must determine whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Air-Sea Packing Group, Inc. v Applied Underwriters, Inc., 228 AD3d 20, 33 [internal quotation marks omitted]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

The Supreme Court properly denied those branches of AWL's motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action, alleging, respectively, breach of contract and breach of the implied covenant of good faith and fair dealing, on the basis that no binding agreement existed between the plaintiff and AWL. "To establish the existence of an enforceable agreement, there must be an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound" (Kay v Heavenly Events & Catering Corp., 241 AD3d 1305, 1307 [internal quotation marks omitted]). "To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" (Virgilio Trailer Corp. v Ferrandino & Son, Inc., 213 AD3d 970, 971 [internal quotation marks omitted]; see Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448). "A court must look to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds and should not place disproportionate emphasis on any single act, phrase or other expression, but should instead look to the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain in order to determine whether a binding contract existed" (Kay v Heavenly Events & Catering Corp., 241 AD3d at 1307 [internal quotation marks omitted]; see Kolchins v Evolution Mkts., Inc., 31 NY3d 100, 106).

Here, while AWL's use of the plaintiff's proposal in its bid did not constitute acceptance of the plaintiff's offer to perform plumbing and gas work on the project (see D'Agostino Gen. Contrs. v Steve Gen. Contr., 267 AD2d 1059, 1059; Cortland Asbestos Prods. v J. & K. Plumbing & Heating Co., 33 AD2d 11, 12-13), the plaintiff also alleged that AWL communicated its acceptance of the proposal to the plaintiff and sought the plaintiff's assistance in the preparation of post-bid submissions (see Rochester Plumbing Supply Co. v A. Burgart, Inc., 49 AD2d 78, 82; cf. D'Agostino Gen. Contrs. v Steve Gen. Contr., 267 AD2d at 1059). Contrary to AWL's contention, its submissions failed to establish the existence of conditions precedent to the formation of the agreement (see generally Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d at 452).

However, the Supreme Court should have granted that branch of AWL's motion which was pursuant to CPLR 3211(a)(7) to dismiss the sixth cause of action, alleging breach of the prime contract between the City and AWL, insofar as asserted against it. The plaintiff's conclusory allegation that it was an intended beneficiary of the prime contract was insufficient to state a cause of action to recover damages for breach of contract under a third-party beneficiary theory (see Thomson v Watchtower Bible and Tract Socy. of N.Y., Inc., 244 AD3d 1019, 1020; Galvin Bros., Inc. v Town of Babylon, N.Y., 91 AD3d 715, 716).

Moreover, the Supreme Court should have granted that branch of AWL's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging unjust enrichment. "The elements of a cause of action to recover [damages] for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Makransky v Makransky, 242 AD3d 977, 980 [internal quotation marks omitted]; see Rosenfeld v Brody, 238 AD3d 1084, 1087). "[A] party must establish that it conferred a benefit upon the other party, and that the other party will retain that benefit without adequately compensating the first party therefor" (Makransky v Makransky, 242 AD3d at 980 [internal quotation marks omitted]). Here, the plaintiff has not pleaded facts sufficient to demonstrate that AWL was unjustly enriched at the plaintiff's expense (see Rosenfeld v Brody, 238 AD3d at 1087; Clifford R. Gray, Inc. v LeChase Constr. Servs., [*3]LLC, 31 AD3d 983, 988).

The Supreme Court also should have granted that branch of AWL's motion which was pursuant to CPLR 3211(a)(7) to dismiss the seventh cause of action, to recover damages for a violation of General Municipal Law § 101(5), insofar as asserted against it on the basis that there is no private right of action under the statute. Where, as here, a statute "contains no express private right of action, plaintiffs can seek civil relief in a plenary action based on a violation of the statute only if a legislative intent to create such a right of action is fairly implied in the statutory provisions and their legislative history" (Konkur v Utica Academy of Science Charter Sch., 38 NY3d 38, 40-41 [internal quotation marks omitted]; see Carrier v Salvation Army, 88 NY2d 298, 302). The Court of Appeals has "identified three essential factors to be considered in determining whether a private right of action can be fairly implied from the statutory text and legislative history: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" (Haar v Nationwide Mut. Fire Ins. Co., 34 NY3d 224, 228-229 [internal quotation marks omitted]; see Sheehy v Big Flats Community Day, 73 NY2d 629, 633-634). "[A]ll three factors must be satisfied before an implied private right of action will be recognized" (Haar v Nationwide Mut. Fire Ins. Co., 34 NY3d at 229; see Ortiz v Ciox Health LLC, 37 NY3d 353, 360).

Here, the first factor was not satisfied, as the plaintiff was not a member of a class for whose particular benefit the statute was enacted (see WMC Realty Corp. v City of Yonkers, 193 AD3d 1018, 1021). The provisions of General Municipal Law § 101 "are for the protection of taxpayers, not the benefit of contractors" (Depot Constr. Corp. v City of New York, 46 NY2d 859, 861; see General Municipal Law § 100-a; Matter of Acme Bus Corp. v Board of Educ. of Roosevelt Union Free School Dist., 91 NY2d 51, 54).

AWL's remaining contention is without merit.

CHAMBERS, J.P., DOWLING, WAN and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court