H. & L. Electric Inc., Plaintiff-Respondent-Appellant,
Midtown Equities LLC, et al., Defendants, 55 Water LLC, et al., Defendants-Appellants-Respondents.
Paget & Riesel, P.C., New York (John-Patrick Curran of
counsel), for 55 Water LLC, appellant-respondent.
B. Safran, New York, for Milagros and Associates LLC, H &
H Builders, Inc. and Steven Wilkowski,
Bennett Stollow, P.C., New York (Aury B. Stollow of counsel),
Sweeny, J.P., Renwick, Andrias, Kapnick, Kahn, JJ.
Supreme Court, New York County (Eileen Bransten, J.), entered
September 29, 2016, which, insofar as appealed from as
limited by the briefs, granted the motion of defendants
Midtown Equities LLC, HK Organization LLC, Rockwood Capital,
LLC (collectively the Midtown defendants) and 55 Water LLC
(55 Water) to dismiss the fraud claim as based on a
nonactionable statement of future intent, but denied
dismissal of the unjust enrichment, quantum meruit, and
promissory estoppel claims as to 55 Water; and order, same
court, Justice, and date of entry, which, insofar as appealed
from, granted the motion of defendants Milagros and
Associates LLC, H & H Builders, Inc., and Steven
Wilkowski (the Wilkowski defendants) to dismiss the fraud
claim, denied their motion to dismiss the unjust enrichment,
quantum meruit, and promissory estoppel claims, and denied
plaintiff's cross motion for leave to amend the complaint
to add Harco Construction, LLC as a defendant to the fraud
claim, unanimously affirmed, without costs.
is an electrical company that bid for work on the restoration
and redevelopment of several historic warehouses in Brooklyn.
55 Water is the developer of the project. The Midtown
defendants are also alleged to be project developers. The
Wilkowski defendants are affiliated with the firm retained by
55 Water as construction manager.
alleges that it performed substantial work to develop a
cost-efficient electrical design for the project based on the
expectation that it would receive the contract to perform the
work, but that the contract was ultimately awarded to another
firm. Plaintiff now seeks to recover for the value of the
services performed or, alternatively, the amount of the
cost-savings achieved by defendants due to incorporation of
motion court correctly dismissed the fraud claim, as
plaintiff failed to allege facts supporting an inference that
defendants had no intention of fulfilling their promise to
confer a future benefit at the time it was made (see 627
Acquisition Co., LLC v. 627 Greenwich, LLC, 85 A.D.3d
645, 647 [1st Dept 2011]; Braddock v Braddock, 60
A.D.3d 84, 89 [1st Dept 2009]).
motion court also correctly denied the motion to dismiss the
quasi-contractual claims. The reasonableness of
plaintiff's expectation of compensation for services
rendered raises an issue that is not capable of being
resolved at this stage (see Farina v. Bastianich,
116 A.D.3d 546, 548 [1st Dept 2014]). Contrary to
defendants' argument, plaintiff is not seeking expenses
based on failed negotiations, which would not provide for
recovery in quasi-contract. Rather, and as alleged in the
complaint, plaintiff was promised that it would receive
compensation, in the form of being awarded the contract for
the project, for the consulting services rendered over the
course of a year. Additionally, plaintiff alleges that it
previously worked with defendants on two separate projects
based on the "understanding that Plaintiff would be
compensated from the fees earned on the contract."
Indeed, plaintiff further alleges that it was in fact awarded
the contract in both those instances.
argument that plaintiff, which is not a licenced engineering
firm, is barred from recovering in quasi-contract because
electrical design work requires an engineering license
pursuant to Education Law § 7202, is unavailing.
it is generally true that, "[w]here the company
performing the work is not licensed, it is precluded from
recovering for the work performed either pursuant to contract
or in quantum meruit" (Charlebois v. J.M. Weller
Assoc., Inc., 72 N.Y.2d 587, 593 ), this is not an
absolute rule. Recognizing that "forfeitures by
operation of law are strongly disfavored, " this Court
has embraced a "commonsense approach, " making
fact-specific determinations as to whether the public policy
underlying the Education Law - "to protect the public
health and safety" - is furthered by complete avoidance
of the contract at issue (id. at 592-95).
Additionally, parties' "efforts to use that concept
as a sword for personal gain rather than a shield for the
public good should not be countenanced in the name of the
Education Law public policy" (id. at 595).
Here, although plaintiff is not a licensed engineering firm,
that a professional engineer was sufficiently involved to
satisfy the public policy underlying the Education ...