Grimes v. Kaplin

Appellate Division of the Supreme Court of New York

Grimes v. Kaplin

305 A.D.2d 1024, 758 N.Y.S.2d 591, 2003 N.Y. App. Div. LEXIS 4710

Appellate Division of the Supreme Court of the State of New York·Decided May 2, 2003·Published·Cited by 4 cases

Opinion

—Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered September 9, 2002, which dismissed the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by reinstating the second and third causes of action and as modified the order is affirmed without costs.

Memorandum: We agree with plaintiff that Supreme Court erred in dismissing the second and third causes of action of the complaint in the absence of a request by defendant for such relief (see Hoeffner v John F. Frank, Inc., 302 AD2d 428 [2003]; Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346 [1993] ; Gibbs v Kinsey, 120 AD2d 701 [1986]). We therefore reinstate those causes of action, which seek to recover on theories of quantum meruit and unjust enrichment. Contrary to the court’s conclusion, those causes of action do not seek to enforce defendant’s alleged promise per se but instead seek to recover the reasonable value of property or services rendered by plaintiff in reliance on such promise. Thus, those causes of action are not barred by the statute of frauds (see Farash v Sykes Datatronics, 59 NY2d 500, 503-504 [1983]; Bradkin v Leverton, 26 NY2d 192, 198-199 [1970]; Matter of Barr, 252 AD2d 875, 877 [1998]; Mirchel v RMJ Sec. Corp., 205 AD2d 388, 390-391 [1994]; Peters v Morse, 96 AD2d 662 [1983]). We further conclude that the court erred in determining as a matter of law on the record before it that plaintiff had not performed the services and incurred the expenditures in question with “an expectation of compensation [therefor].” We do not reinstate the remaining cause of action for breach of contract, however, because plaintiff concedes that it is barred by the statute of frauds and has abandoned any issue on appeal with respect to its dismissal (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994] ). Thus, we modify the order by reinstating the second and third causes of action. Present — Wisner, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.

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—Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered September 9, 2002, which dismissed the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by reinstating the second and third causes of action and as modified the order is affirmed without costs.

Memorandum: We agree with plaintiff that Supreme Court erred in dismissing the second and third causes of action of the complaint in the absence of a request by defendant for such relief (see Hoeffner v John F. Frank, Inc., 302 AD2d 428 [2003]; Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346 [1993] ; Gibbs v Kinsey, 120 AD2d 701 [1986]). We therefore reinstate those causes of action, which seek to recover on theories of quantum meruit and unjust enrichment. Contrary to the court’s conclusion, those causes of action do not seek to enforce defendant’s alleged promise per se but instead seek to recover the reasonable value of property or services rendered by plaintiff in reliance on such promise. Thus, those causes of action are not barred by the statute of frauds (see Farash v Sykes Datatronics, 59 NY2d 500, 503-504 [1983]; Bradkin v Leverton, 26 NY2d 192, 198-199 [1970]; Matter of Barr, 252 AD2d 875, 877 [1998]; Mirchel v RMJ Sec. Corp., 205 AD2d 388, 390-391 [1994]; Peters v Morse, 96 AD2d 662 [1983]). We further conclude that the court erred in determining as a matter of law on the record before it that plaintiff had not performed the services and incurred the expenditures in question with “an expectation of compensation [therefor].” We do not reinstate the remaining cause of action for breach of contract, however, because plaintiff concedes that it is barred by the statute of frauds and has abandoned any issue on appeal with respect to its dismissal (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994] ). Thus, we modify the order by reinstating the second and third causes of action. Present — Wisner, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.

Grimes v. Kaplin, 305 A.D.2d 1024, 758 N.Y.S.2d 591, 2003 N.Y. App. Div. LEXIS 4710 (N.Y. Ct. App. 2003).

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