        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

547
CA 15-01795
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


PATRICIA KAREN KILLIAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CAPTAIN SPICER’S GALLERY, LLC, SPICER
HOLDINGS, LLC, KENNETH A. HOOSON AND
GREGORY K. HOOSON, DEFENDANTS-RESPONDENTS.


MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (TERESA M. BENNETT OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (STEPHEN W. GEBO OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), entered April 13, 2015. The order, among other
things, granted defendants’ motion for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendants’ motion in part
and reinstating the first cause of action against defendant Captain
Spicer’s Gallery, LLC for the six-year period before the filing of the
complaint insofar as it seeks compensation in the nature of wages, and
as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking unpaid wages
and reimbursement of certain credit card charges and funds she
advanced while she was the manager of a gift shop owned by defendant
Captain Spicer’s Gallery, LLC (Gallery). The complaint, as amplified
by plaintiff’s responses to defendants’ interrogatories, also sought
damages for, inter alia, the use of a trademark allegedly registered
to plaintiff. Plaintiff appeals from an order granting defendants’
motion for partial summary judgment dismissing certain claims and
denying her cross motion for partial summary judgment.

     Plaintiff concedes that Supreme Court properly concluded that the
statute of limitations barred all of her claims that accrued prior to
August 2006, i.e., more than six years prior to the commencement of
the action (see generally CPLR 213). She contends, however, that the
court erred in dismissing those claims in their entirety rather than
permitting them to be used to set off defendants’ counterclaims.
“Whether setoff is an affirmative defense (CPLR 3018 [b]) or is more
akin to a counterclaim (CPLR 3019 [a]), the facts in support thereof
must be pleaded in the” responsive pleading (Kivort Steel v Liberty
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                                                         CA 15-01795

Leather Corp., 110 AD2d 950, 952). Plaintiff’s failure to assert
facts in support of her alleged right to a setoff in her reply
constitutes a waiver of that right (see Ellenville Natl. Bank v
Freund, 200 AD2d 827, 828; Kivort Steel, 110 AD2d at 952).
Furthermore, even assuming, arguendo, that a setoff could be raised
despite that waiver, we note that it is well settled that a time-
barred claim may be used to set off another claim only to the extent
that the two claims arise from the same incident or transaction (see
Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 791-792;
Robson & Miller, LLP v Sakow, 121 AD3d 562, 563; Matter of Watson, 8
AD3d 1092, 1093-1094), which is not the case here.

     Contrary to plaintiff’s further contention, the court properly
granted that part of defendants’ motion with respect to the trademark
infringement claim that was arguably raised in her third cause of
action, as amplified by her responses to the interrogatories. “To
prevail on [a trademark] infringement action, . . . plaintiff must
demonstrate: (1) ‘that [she] has a valid mark entitled to protection,’
and (2) ‘that the defendant[s’] use of that mark is likely to cause
confusion’ ” (Juicy Couture, Inc. v Bella Intl. Ltd., 930 F Supp 2d
489, 498 [SD NY], quoting Time, Inc. v Petersen Publ. Co. LLC, 173 F3d
113, 117 [2nd Cir]; see Van Praagh v Gratton, 993 F Supp 2d 293, 301
[ED NY]). Initially, we note that, as discussed above and conceded by
plaintiff, this claim is time-barred insofar as it seeks recovery for
events occurring more than six years prior to the filing of the
complaint. With respect to that part of the claim that seeks recovery
for events allegedly occurring within the six-year period prior to
filing, defendants met their burden of establishing that plaintiff’s
trademark was not valid because it had been cancelled before that
time, and plaintiff failed to raise a triable issue of fact whether
she “has a valid mark entitled to protection” (Time, Inc., 173 F3d at
117 [internal quotation marks omitted]).

     We agree with plaintiff, however, that the court erred in
granting that part of defendants’ motion with respect to the first
cause of action as asserted against the Gallery insofar as she sought
damages in the nature of unpaid wages for the six years prior to the
filing of the complaint. We therefore modify the order accordingly.
“In order to make out a cause of action in quantum meruit or quasi
contract, a plaintiff must establish (1) the performance of services
in good faith; (2) the acceptance of those services by the person [or
entity] to whom [or which] they are rendered; (3) an expectation of
compensation therefor; and (4) the reasonable value of the services”
(Landcom, Inc. v Galen-Lyons Joint Landfill Commn., 259 AD2d 967,
968). “ ‘[T]he performance and acceptance of services gives rise to
the inference of an implied contract to pay for the reasonable value
of such services’ ” (Farina v Bastianich, 116 AD3d 546, 547-548; see
Matter of Adams, 1 AD2d 259, 262, affd 2 NY2d 796). Here, the court
concluded that no such inference could be drawn, based on its further
conclusion that, “ ‘because of the relationship between the parties,
it is natural that such service[s] should be rendered without
expectation of pay’ ” (Moors v Hall, 143 AD2d 336, 338, quoting
Robinson v Munn, 238 NY 40, 43; see Matter of Alu, 302 AD2d 520, 520).
Although defendants met their initial burden on the motion by
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                                                         CA 15-01795

establishing that such a relationship existed between plaintiff and
defendant Kenneth A. Hooson, the principal of the Gallery, we conclude
that plaintiff raised a triable issue of fact whether “she expected to
be paid for the services” despite that relationship and, if so,
whether that expectation was reasonable (Moors, 143 AD2d at 338; see
Alu, 302 AD2d at 520), i.e., whether the employee services for which
plaintiff seeks recovery are not the type of “personal services
between unmarried persons living together” for which there would not
be an expectation of repayment (Morone v Morone, 50 NY2d 481, 489; see
generally Umscheid v Simnacher, 106 AD2d 380, 382-383).

     Plaintiff further contends that the court erred in granting that
part of defendants’ motion with respect to the remainder of the first
cause of action, i.e., the non-time-barred claims seeking
reimbursement for loans she allegedly made to the Gallery and for
merchandise that she allegedly purchased for sale in the Gallery using
her personal credit card. Defendants moved for summary judgment
dismissing those claims based on several theories, including that they
were barred by the statute of frauds, and the court granted that part
of defendants’ motion with respect to those claims based on the
statute of frauds. Plaintiff failed to address that ground in her
brief on appeal, however, “and thus any issue with respect to that
part of the order is deemed abandoned” (Razey v Wacht, 281 AD2d 941,
942, citing Ciesinski v Town of Aurora, 202 AD2d 984, 984).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
