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

1077
CA 13-02227
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


JEFFREY’S AUTO BODY, INC., PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


GOLDBERG SEGALLA LLP, SYRACUSE (MATTHEW S. LERNER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BOUSQUET HOLSTEIN PLLC, SYRACUSE (ROBERT K. WEILER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered April 3, 2013. The order denied in part
defendant’s motion to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of defendant’s
motion seeking dismissal of the second cause of action, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiffs in these four appeals operate automobile
repair shops, and they commenced these actions to recover payment for
repairs performed on behalf of various assignors, including first-
party assignors, i.e., defendants’ insureds, and persons involved in
accidents with defendants’ insureds, i.e., third-party assignors (see
generally 11 NYCRR 216.7 [a] [2]). Insofar as relevant in each
appeal, plaintiffs asserted causes of action for breach of contract,
quantum meruit, and the violation of General Business Law § 349, which
prohibits deceptive business practices. Defendants moved pursuant to
CPLR 603 to sever the individual claims set forth in the amended
complaint in appeal No. 2 and in the complaints in appeal Nos. 1, 3,
and 4, and they sought dismissal of the amended complaint and the
respective complaints pursuant to CPLR 3211 (a) (5) and (7). We
reject defendants’ contentions with respect to severance and the
causes of action for breach of contract and section 349, and we agree
with Supreme Court’s resolution of those issues for reasons set forth
in the court’s decision. We agree with defendants, however, that the
court erred in denying those parts of their motions seeking dismissal
of the second cause of action, alleging quantum meruit, in each
appeal, and we modify the order in each appeal accordingly.

     No cause of action for quantum meruit will lie where “an express
                                 -2-                          1077
                                                         CA 13-02227

enforcible contract exist[ed] between the parties concerning the same
subject matter” (G & S Custom Homes v Holtz, 179 AD2d 1025, 1026; see
Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388). With
respect to the first-party assignors, there is no cause of action for
quantum meruit, inasmuch as the policies were in force at all relevant
times. With respect to the third-party assignors, we conclude that
there is no cause of action for quantum meruit because where, as here,
“services were performed at the behest of someone other than the
defendant, [a] plaintiff must look to that person for recovery”
(Heller v Kurz, 228 AD2d 263, 264). Here, the services were performed
at the behest of plaintiffs’ customers, i.e., third-party assignors,
and plaintiffs therefore do not have quantum meruit causes of action
against defendants (see Pekler v Health Ins. Plan of Greater N.Y., 67
AD3d 758, 760; Kirell v Vytra Health Plans Long Is., Inc., 29 AD3d
638, 639).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
