HOME IMPROVEMENT CONTRACTORS - NO SIGNED WRITTEN AGREEMENT

HOME CONSTRUCTION CORP. v. BEAURY, 2017 NY Slip Op 2628 - NY: Appellate Div., 2nd Dept. 2017 where plaintiff claimed the total cost of the project, including additions and credits, was $1,068,720, of which $219,850 remained unpaid:

"General Business Law § 771 sets forth a number of requirements for home improvement contracts, including that the contract be evidenced by a writing signed by all the parties to the contract (see General Business Law § 771; Johnson v Robertson, 131 AD3d 670, 672; Evans-Freke v Showcase Contr. Corp., 85 AD3d 961, 962). Generally, the absence of an enforceable written agreement between the parties precludes a contractor from recovering for breach of a home improvement contract (see F & M Gen. Contr. v Oncel, 132 AD3d 946, 948; Johnson v Robertson, 131 AD3d at 672; Frank v Feiss, 266 AD2d 825, 826; Mindich Devs. v Milstein, 227 AD2d 536, 536-537).

Although a contractor cannot enforce a contract that fails to comply with General Business Law § 771, a contractor may seek to recover based on the equitable theory of quantum meruit (see Johnson v Robertson, 131 AD3d at 672; Evans-Freke v Showcase Contr. Corp., 85 AD3d at 962; Frank v Feiss, 266 AD2d at 826; Mindich Devs. v Milstein, 227 AD2d at 537). "The elements of a cause of action sounding in quantum meruit are (1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered" (Evans-Freke v Showcase Contr. Corp., 85 AD3d at 962; see Johnson v Robertson, 131 AD3d at 672).

Although an unenforceable writing may provide evidence of the value of services rendered in quantum meruit (see Frank v Feiss, 266 AD2d at 826; Taylor & Jennings v Bellino Bros. Constr. Co., 106 AD2d 779, 780; see also Evans-Freke v Showcase Contr. Corp., 85 AD3d at 963), here, the record is devoid of evidence which would establish the reasonable value of the services Home Construction may have provided to the defendants (see Michaels v Byung Keun Song, 138 AD3d at 1075; see also Crown Constr. Bldrs. & Project Mgrs. Corp. v Chavez, 130 AD3d 969, 971-972; Geraldi v Melamid, 212 AD2d 575, 576). Neither the unsigned written proposal nor the testimony of Malo established the value of any services undertaken by Home Construction, or that the value of such services exceeded the amounts paid by the defendants. Accordingly, the Supreme Court properly dismissed Home Construction's cause of action to recover in quantum meruit for lack of proof (see Michaels v Byung Keun Song, 138 AD3d at 1075).

In contrast, the defendants, on their counterclaim, offered the testimony of experts regarding the cost they expended in completing or repairing roofing, flooring, brickwork, and other aspects of the project as set forth in the architectural plans. The Supreme Court properly concluded that the defendants were entitled to be compensated for the cost of completion of the construction work and the correction of defects in Home Construction's work, and the proper measure of damages is the fair and reasonable market price for correcting the defective installation or completing the construction (see Bellizzi v Huntley Estates, 3 NY2d 112, 115; Hodges v Cusanno, 94 AD3d 1168, 1169; Kaufman v Le Curt Constr. Corp., 196 AD2d 577, 578)."