Marine Bulkheading, Inc. v. Ibex Constr. Co., LLC

Opinion

Marine Bulkheading, Inc. v Ibex Constr. Co., LLC

2026 NY Slip Op 04937

August 12, 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.

Marine Bulkheading, Inc., appellant,

v

Ibex Construction Company, LLC, et al., defendants, Costco Wholesale Corporation, respondent.

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

Decided on August 12, 2026

2024-10765, (Index No. 510509/16)

Mark C. Dillon, J.P.

Deborah A. Dowling

Carl J. Landicino

James P. McCormack, JJ.

John N. Cuomo, Commack, NY, for appellant.

Kaufman Dolowich LLP, New York, NY (Steven C. Cramer and Daniel E. Katz of counsel), for respondent.

[*1]

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 AD3d 1056, 1057; see Ruland v Leibowitz, 209 AD3d 1051, 1052; Mulle v Lexington Ins. Co., 198 AD3d 908, 909-910). "'[L]eave to amend a pleading should be granted where the amendment is neither palpably insufficient nor [*2]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 AD3d at 1057, quoting DLJ Mtge. Capital, Inc. v David, 147 AD3d 1024, 1025; see First Natl. Bank of Long Is. v Four Keys Realty, LLC, 213 AD3d 639, 641). "'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 AD3d at 1057, quoting Shields v Darpoh, 207 AD3d 586, 587; see First Natl. Bank of Long Is. v Four Keys Realty, LLC, 213 AD3d at 641).

"'[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 AD3d 809, 811, quoting Auquilla v Villa, 240 AD3d 48, 57). "'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, quoting Whitfield v Law Enforcement Empls. Benevolent Assn., 237 AD3d 1139, 1141). "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 NY2d 382, 388; see Auquilla v Villa, 240 AD3d at 57; Knox v Countrywide Home Loans, Inc., 205 AD3d 792, 793).

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 AD3d 451, 452; see Auquilla v Villa, 240 AD3d at 59; Turan v Union Modular Homes, LLC, 234 AD3d 1063, 1068; Board of Mgrs. of the 15 Union Sq. W. Condominium v Azogui, 220 AD3d 405, 405). 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 AD2d 550, 551 [citation omitted]; see Contelmo's Sand & Gravel v J & J Milano, 96 AD2d 1090, 1090). 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 AD2d 545, 547).

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

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

ENTER:

Darrell M. Joseph

Clerk of the Court