                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 7, 2016                     521121
________________________________

JAMES C. DAVIS,
                      Respondent,
     v

CEC, INC., et al.,                            MEMORANDUM AND ORDER
                      Defendants,
     and

DENNIS M. NOONAN,
                    Appellant.
________________________________


Calendar Date:    November 24, 2015

Before:    Garry, J.P., Rose, Lynch, Devine and Clark, JJ.

                               __________


      Muller, Mannix & Reichenbach, PLLC, Glens Falls (Brian S.
Reichenbach of counsel), for appellant.

      Stanclift, Ludemann, Silvestri & McMorris, PC, Glens Falls
(John M. Silvestri of counsel), for respondent.

                               __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Muller, J.),
entered July 25, 2014 in Warren County, upon a decision of the
court in favor of plaintiff.

      Defendant Dennis M. Noonan (hereinafter defendant)
contracted with defendant Joseph R. Hubert to construct a turnkey
log home on defendant's property. Subsequently, Hubert and
plaintiff entered into what plaintiff agreed was an oral
subcontract for "time and material," under which plaintiff was to
perform certain items of work related to the improvement of
                               -2-                521121

defendant's property and the construction of the home.
Approximately one year after he commenced work on the property,
plaintiff notified defendant that Hubert had not paid him in
several weeks, though plaintiff never submitted an invoice to or
demanded payment from defendant. Ultimately, Hubert abandoned
the job site, still owing plaintiff significant sums of money for
work performed, which plaintiff never received. Shortly
thereafter, plaintiff stopped work pursuant to his agreement with
Hubert, filed a mechanic's lien and, eventually, commenced this
action against defendant, Hubert and CEC, Inc., Hubert's
contracting company, for breach of contract, unjust enrichment
and quantum meruit. Defendant joined issue and, after a nonjury
trial, Supreme Court found in favor of plaintiff, holding that he
had proven his unjust enrichment and quantum meruit claims
against defendant and, accordingly, was entitled to an equitable
recovery.1 Defendant now appeals, and we reverse.

      Initially, we note that "we are 'vested with broad
authority to independently review the probative weight of the
evidence, together with the reasonable inferences that may be
drawn therefrom, and grant the judgment warranted by the record
in this nonjury case'" (Medina v State of New York, 133 AD3d 943,
944 [2015], quoting Shon v State of New York, 75 AD3d 1035, 1036
[2010]; see Weinberger v New York State Olympic Regional Dev.
Auth., 133 AD3d 1006, 1007 [2015]). In its decision, Supreme
Court found defendant liable to plaintiff for two categories of
damages, namely, amounts owed for labor and materials
contemplated by the written, prime contract between defendant and
Hubert, and amounts owed for work that the court deemed to be
outside the scope of the prime contract.

      At the outset, we find Supreme Court's conclusion regarding
defendant's liability for the work expressly contemplated by the
prime contract to be incorrect as a matter of law, "given that
'[t]he existence of a valid and enforceable written contract


     1
        Although plaintiff joined Hubert as a party to this
action, Hubert never appeared and, in any event, plaintiff
concedes that he made no attempt to proceed against Hubert
directly.
                              -3-                521121

governing a particular subject matter ordinarily precludes
recovery in quasi contract for events arising out of the same
subject matter'" (IMS Engrs.-Architects, P.C. v State of New
York, 51 AD3d 1355, 1358 [2008], lv denied 11 NY3d 706 [2008],
quoting Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382,
388 [1987]). As to the additional finding that defendant was
unjustly enriched by plaintiff's performance of certain items of
work outside the scope of the prime contract, we agree with
defendant that the evidence presented at trial belies the court's
conclusion.

      Whether or not the work at issue arose out of the subject
matter of the prime contract, the evidence makes clear that the
work was done within the scope of plaintiff's oral subcontracts
with Hubert. Plaintiff admitted as much during his testimony
when he described the work that he completed under Hubert's
direction – which included the items that the court identified as
being outside the scope of the prime contract – and when he
further acknowledged that his entire claim for damages is based
upon "the work [he] did as a subcontractor for . . . Hubert."
Thus, "given that plaintiff failed to specifically articulate any
work performed outside the scope of the subcontract for which
[he] has not been paid" (Andrew R. Mancini Assoc., Inc. v Mary
Imogene Bassett Hosp., 80 AD3d 933, 936 [2011]), and in light of
Supreme Court's express, unchallenged finding that defendant did
not, by his words or actions, assume Hubert's obligation to pay
plaintiff pursuant to the oral subcontract (see Robert H. Finke &
Sons v Sears Oil Co., 256 AD2d 868, 869 [1998]; M. Gold & Son v
A.J. Eckert, Inc., 246 AD2d 746, 748 [1998]; Graystone Materials
v Pyramid Champlain Co., 198 AD2d 740, 741-742 [1993]), we find
that the court's judgment in favor of plaintiff on his claims
against defendant for unjust enrichment and quantum meruit must
be reversed.

      Finally, although Supreme Court did not specifically
address plaintiff's conventional breach of contract claim,
plaintiff argues, as an alternate ground for affirmance, that
defendant is liable for Hubert's breach of his oral subcontract
with plaintiff because Hubert entered into the agreement as
defendant's authorized agent, rather than on his own behalf.
However, nothing in the prime contract can be read, expressly or
                              -4-                  521121

impliedly, to create an agency relationship between defendant and
Hubert (see Pyramid Champlain Co. v R.P. Brosseau & Co., 267 AD2d
539, 544 [1999], lvs denied 94 NY2d 760 [2000]). Nor can it be
said that Hubert had apparent agency authority, inasmuch as
"[t]he record is devoid of any evidence that at the time
[plaintiff] entered into [the] contract[] with [Hubert],
[plaintiff] was aware of any conduct on the part of [defendant]
giving rise to a reasonable belief that an agency relationship
had been created which authorized [Hubert] to enter into the
contracts on [defendant's] behalf or to bind [defendant] to the
terms thereof" (id.; see Hallock v State of New York, 64 NY2d
224, 231 [1984]; L.S. & Sons Farms, LLC v Agway, Inc., 41 AD3d
1152, 1153 [2007]). Indeed, plaintiff testified that he did not
meet defendant until months after he had been hired by Hubert,
that he never discussed the terms of his agreement with Hubert
with defendant directly, and that no one represented to him that
Hubert was acting as defendant's agent when Hubert offered him
the job. Accordingly, we find that plaintiff also has no breach
of contract claim against defendant, as "[s]ubcontractors cannot
maintain actions for breach of contract against parties with whom
they are not in privity" (Andrew R. Mancini Assoc., Inc. v Mary
Imogene Bassett Hosp., 80 AD3d at 934).

     Garry, J.P., Lynch, Devine and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, with
costs, and complaint dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
