State of New York
Supreme Court : County of Monroe

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The plaintiff here is a painting contractor who was hired to do the final painting at 8 Prince Street, the former Sacred Heart Academy in Rochester that has been through many owners and forms before its current incarnation as luxury apartments. The contract he signed, which incorporates both his written proposal and the standard-form AIA contract, is for labor only; Flower City Management, the developer, paid for materials. Plaintiff contracted to paint and caulk all walls and ceilings, trim, duct work, and piping.

Plaintiff submitted invoices as he worked and was paid in full for every invoice submitted. The defendant's experience, however, was not a happy one. Defendant claims in its papers that the plaintiff repeatedly argued with its employees and with other contractors and was finally asked not to return.

After removal from the site plaintiff filed a mechanics lien for $16,300. This document is frankly incomprehensible. It lists labor performed as $21,3500 [sic; the contract price was $21,350]; material manufactured but not delivered--a category completely inappropriate to this action--as $12,000; and unpaid labor as $4300. Thus, most of this $16,300 was somehow attributed to materials. It appears from the present papers that plaintiff's true claim is that he performed extra work which he values at $12,000, and to this he adds the $4300 of the contract price over and above the $17,000 in invoices which he had submitted to defendant.

The actual sum demanded remains unclear. When plaintiff brought an action to foreclose the lien his papers gave its amount as $16,900. After the defendant answered, with various defenses and a counter-claim for $5,000 based on the assertion that the plaintiff's work was so poor as to require repainting, the plaintiff amended his complaint to add a cause of action in quantum meruit. The amount claimed under this cause of action is $16,300.

Nor is the extra work set out in any consistent way. The lien states that the work performed which gave rise to the claim was painting apartments and hallways, which would appear to be work within the contract specifications. The amended complaint, which unlike the original complaint was not verified, lists for the first time some specific work allegedly performed though not required under the contract. It includes items clearly contemplated by that document, however: painting the moldings in the hallways and priming the moldings, baseboards, window frames, and around duct work. It appears to contain claims for materials, which were by contract supplied by the defendant. Furthermore, in explaining the extra nature of this work the plaintiff states that the only trim called for in the contract was around the door frames for each apartment. This is false. The contract proposal states that the plaintiff is to paint all trim.

The only items in this list that colorably lie outside the contract terms are touch-up painting required because the units were said to have been shown before the paint had dried, painting "up the staircase", and painting the entrance into the main lobby. Defendant, in response, claims that its employees did the work on the last two items, and states that touch-up was required because plaintiff painted several apartments before he was told they were ready for painting, while other workers' tasks were still unfinished. It backs up these arguments with evidentiary submissions.

Plaintiff's deposition, in contrast, is vague on what he did, although he admits that he never submitted invoices for the claimed extra work. While the defendants' affidavits are far more specific and convincing, though, the court is not empowered to make credibility determinations in the context of a summary judgment motion unless the plaintiff's submissions are "inherently improbable" (Marti v NYCHA, 192 AD2d 443, 444). The plaintiff's deposition testimony comes close to this low standard but cannot be rejected out of hand. Accordingly, it creates a question of fact as to the three items on his list.

But the court does not stop there. It must decide if these questions of fact are material to any legal issues in this case. The court holds that they are irrelevant to the determination of the motion with respect to both of the plaintiff's theories. Regardless of the work done, the quantum meruit claim is barred because there was a contract between the parties. As a quasi-contractual action, it cannot be brought where a contract exists and controls the relationship between the parties. In the words of the Court of Appeals:

Here, it is undisputed that the relationship between the parties was defined by a written contract, fully detailing all applicable terms and conditions, and specifically providing for project design changes with adjustments in compensation contemplated in light of those changes. Notwithstanding plaintiff's claim that defendant breached the contract, plaintiff chose not to rescind the agreement, but instead to complete performance of the contract and sue to recover damages, which of course was plaintiff's right. Having chosen this course, however, plaintiff is now limited to recovery of damages on the contract, and may not seek recovery based on an alleged quasi contract (Clark-Fitzpatrick v Long Is. R.R. Co., 70 NY2d 382, 389).

The breach of contract claim underlying the lien remains, but here, too, the plaintiff has failed to show a material issue of fact. The liability of the parties must be measured by the language of the contract, and when the court looks at the two documents that make up this agreement it is clear that the plaintiff has no basis to make a claim for extra work not authorized in writing. The plaintiff's own proposal, which is incorporated by reference into the contract, provides that "any alteration or deviation from above specifications involving extra costs will be executed only upon written orders and will become an extra charge."

The plaintiff has shown no such orders. The defendant has provided proof in evidentiary form that no work beyond the contract was required to be performed. This meets the defendant's initial burden of showing entitlement to summary judgment. The burden then shifts to the plaintiff to establish an issue of fact as to a breach. Mere allegations of extra work are insufficient. The plaintiff is required to show written orders for the work and a failure to pay.

Although for the purposes of this motion the court must assume that the plaintiff did perform extra work, the court must conclude from the record that no such work was ever authorized by the defendant in writing. If indeed the plaintiff did such work he did it at his own risk. It is precisely to avoid lawsuits like the present one that such contractual provisions are drafted.

Plaintiff alternatively argues that this motion is premature, because he is entitled to discovery of architectural drawings and other documents. He argues that these would support his claim that design changes required him to do work over and above that contemplated at the time the contract was entered into. Such discovery, however, could not produce evidence relevant to the legal issues here. Since the contract is in no way conditioned on the accuracy of any diagrams or building plans, the plaintiff would still have to show that changes in the plans resulted in change orders, in writing, before he could claim damages under the contract. The complaint is therefore dismissed, with costs, and the lien vacated. Counsel for the defendant may prepare the order.

DATED: Rochester, New York

December 11, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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