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St. Louis West, Inc. v. Pickard

NEW YORK APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


February 9, 2010

ST. LOUIS WEST, INC., PLAINTIFF-RESPONDENT,
v.
TODD S. PICKARD, ESQ., DEFENDANT-APPELLANT, AND
CHAHEE PICKARD, DEFENDANT.

Defendant Todd S. Pickard appeals, as limited by his briefs, from (1) that portion of an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated September 8, 2008, which, upon renewal and reargument, adhered to a prior order granting plaintiff's motion for summary judgment as against him, and (2) a judgment (same court and Judge), entered November 28, 2008, in favor of plaintiff and awarding it damages against him in the principal sum of $7,002.55.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P. J., Schoenfeld JJ.

Judgment (Arthur F. Engoron, J.), entered November 28, 2008, reversed, without costs, and judgment directed in favor of defendant Todd S. Pickard dismissing the complaint as against him. The Clerk is directed to enter judgment accordingly. Appeal from order (same Judge), dated September 8, 2008, dismissed, without costs, as subsumed in the appeal from the aforesaid judgment.

Plaintiff, an appellate printer, commenced this action against defendant-appellant Todd S. Pickard (appellant) and defendant Chahee Pickard (Chahee) seeking to recover damages for services plaintiff rendered in connection with defendants' joint appeal from a judgment and orders issued in their prior matrimonial action. The record is clear that plaintiff was retained solely by Chahee's attorney in the matrimonial action, and that plaintiff sent the attorney the invoice for the printing services. Upon settling its claims against Chahee, plaintiff successfully moved for summary judgment against appellant for his putative "share" of the costs of the printing services.

We reverse, and grant appellant summary judgment dismissal, since no basis exists for imposing liability against him. As indicated, appellant was not a party to the contract between plaintiff and Chahee. Given the absence of privity of contract between plaintiff and appellant, appellant may not properly be held liable under a breach of contract theory (see La Barte v Seneca Resources Corp., 285 AD2d 974 [2001]; see also Seaver v Ransom, 224 NY 233 [1918]). Nor may appellant be cast in damages on a quantum meruit theory, since the services were performed for and at the behest of Chahee (see Kagan v K-Tel Entertainment, Inc., 172 AD2d 375, 376 [1991]; see also Gen. Sec. Property & Cas. Co. v American Fleet Mgt. Co., 37 AD3d 345 [2007]), and this despite any benefit that appellant may have derived from plaintiff's services (see Kagan, 172 AD2d at 376). Plaintiff's contention that appellant is liable for his "share" of the costs of the services under 22 NYCRR 600.11(d) is without merit. The cited rule, which provides that the costs of a joint record (or joint appendix) should "be borne equally among the parties," serves only to establish the respective rights and obligations of the parties to an appeal inter se (see Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin A.C. Corp., 221 AD2d 243 [1995]; Greenwald v Trimfoot Co., 221 AD2d 245 [1995]), and does not create an independent right of recovery in favor of a third-party such as plaintiff herein.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20100209

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