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

1427
CA 11-01260
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.


LEO J. ROTH CORPORATION, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

TRADEMARK DEVELOPMENT CO., INC., LEGACY AT ERIE
STATION LLC, U.S. HOMES CO., INC., LEGACY AT
FAIRWAYS LLC, AND MARK IV CONSTRUCTION CO., INC.,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 2.)


GATES & ADAMS, P.C., ROCHESTER (ANTHONY J. ADAMS, JR., OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

HARRIS BEACH PLLC, PITTSFORD (DAVID J. EDWARDS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Kenneth R. Fisher, J.), entered December 1, 2010 in a breach of
contract action. The judgment, among other things, awarded plaintiff
the sum of $464,523.36 against defendants.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying in their entirety those
parts of plaintiff’s motion seeking summary judgment on the first
through third and fifth through eighth causes of action, and by
denying those parts of plaintiff’s motion seeking dismissal of the
first affirmative defense and counterclaim and reinstating that
affirmative defense and counterclaim, and as modified the judgment is
affirmed without costs.

     Memorandum: Plaintiff, a heating, ventilation and air
conditioning (HVAC) subcontractor, commenced this action seeking
damages resulting from defendants’ alleged failure to pay plaintiff in
full for its work on two construction projects, i.e., Legacy at Erie
Station (Erie Station project) and Legacy at Fairways (Fairways
project). Defendant Trademark Development Co., Inc. (Trademark) was
the general contractor and defendant Legacy at Erie Station, LLC was
the owner of the Erie Station project, and defendant U.S. Homes Co.,
Inc. (U.S. Homes) was the general contractor and defendant Legacy at
Fairways, LLC was the owner of the Fairways project. Defendant Mark
IV Construction Co., Inc. (Mark IV) is the assignee of both HVAC
subcontracts awarded to plaintiff by the general contractors.

     Supreme Court erred in granting, with the exception of the claim
                                 -2-                          1427
                                                        CA 11-01260

for compensation for extra work, that part of plaintiff’s motion
seeking summary judgment on the first cause of action alleging breach
of the subcontract with Trademark, and in granting those parts of the
motion seeking dismissal of the first affirmative defense and
counterclaim alleging plaintiff’s breach of that subcontract. We
therefore modify the judgment accordingly. The subcontract provides,
inter alia, for plaintiff’s work to be performed in accordance with
the plans and specifications prepared by the Erie Station project’s
engineering firm and the standards and guidelines for the New York
State Energy Research and Development Authority (NYSERDA) incentive
certification obtained by Trademark. In support of its motion,
however, plaintiff failed to submit the engineering plans and
specifications or the NYSERDA certification, and thus failed to
establish its compliance therewith (see generally Mentesana v Bernard
Janowitz Constr. Corp., 36 AD3d 769, 771; Arbatosky v Herman, 28 AD3d
1241, 1242). In particular, by failing to submit those documents
plaintiff failed to establish that the heat pumps it installed at Erie
Station complied with the pertinent requirements set forth in the
subcontract at the time it was executed.

     We reach a different conclusion with respect to the fourth cause
of action, alleging breach of the subcontract between plaintiff and
U.S. Homes for the Fairways project. The court properly granted those
parts of plaintiff’s motion seeking summary judgment on that cause of
action and seeking dismissal of the second affirmative defense and
counterclaim, alleging plaintiff’s breach of that subcontract.
Plaintiff met its initial burden on those parts of the motion by
establishing the relevant terms of that subcontract, plaintiff’s
performance thereof and the failure of U.S. Homes to pay the full
amount due under that subcontract (see North Cent. Mech., Inc. v Hunt
Constr. Group, Inc., 43 AD3d 1396, 1397, lv dismissed 9 NY3d 1029).
In opposition, defendants failed to raise a triable issue of fact with
respect to the fourth cause of action or the merits of the second
affirmative defense and counterclaim (see generally Pando v Tapia, 79
AD3d 993, 995; NYCTL 1998-2 Trustee v 2388 Nostrand Corp., 69 AD3d
594, 595).

     The court erred, however, in granting those parts of plaintiff’s
motion seeking summary judgment on the remaining causes of action, and
we therefore further modify the judgment accordingly. The second,
third, fifth and sixth causes of action, seeking recovery under the
theories of unjust enrichment or quantum meruit, are duplicative of
the breach of contract causes of action, and thus recovery under those
theories is barred by the existence of the valid and enforceable
subcontracts (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561,
572; Clark-Fitzpatrick v Long Is. R.R. Co., 70 NY2d 382, 388-389; CFI
Constr., Inc. v Central Sq. Cent. School Dist., 34 AD3d 1354, 1355).
The court also erred in granting in its entirety that part of
plaintiff’s motion seeking summary judgment on the seventh cause of
action and granting, with the exception of the claim for compensation
for extra work, that part of plaintiff’s motion seeking summary
judgment on the eighth cause of action. We thus additionally modify
the judgment accordingly. Plaintiff failed to meet its burden with
respect to those causes of action, which are each for an account
                                 -3-                          1427
                                                        CA 11-01260

stated. “Whether a bill has been held without objection for a period
of time sufficient to give rise to an inference of assent, in light of
all the circumstances presented, is ordinarily a question of fact, and
becomes a question of law only in those cases where only one inference
is rationally possible” (Legum v Ruthen, 211 AD2d 701, 703). We
conclude, in light of all the circumstances presented, that more than
one inference is rationally possible on the issue whether an account
stated may be found based upon the retention of plaintiff’s invoices,
thus precluding summary judgment on that issue (see Yannelli, Zevin &
Civardi v Sakol, 298 AD2d 579, 580-581).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
