Tuesday, January 29, 2019


At some point, a choice must be made as to an election of remedies. An unjust enrichment claim, also known as a quasi-contract or an implied contract, is meant to apply where there is no contract between parties, but one party is unfairly benefiting from the efforts of the other without providing compensation. If both claims are made, breach of contract and unjust enrichment, the court is obliged to dismiss either one or the other. In this case, plaintiff chose breach of contract but did not choose correctly.

A&D Pool Serv. v. Hayden, NYLJ 1/17/19, Date filed: 2018-12-13, Court: Appellate Term, Second Department, 9th &10th Judicial Districts, Case Number: 2017-1436NC:

"In a commercial claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807-A [a]; see UDCA 1804-A; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]).

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach, and resulting damages (see New York State Workers’ Compensation Bd. v. SGRisk, LLC, 116 AD3d 1148, 1153 [2014]; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2010]. “As with any contract, an oral agreement is not enforceable unless there is ‘a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms’ ” (Kelly v. Bensen, 151 AD3d 1312, 1313 [2017], quoting Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 NY2d 584, 589 [1999]; see also Saul v. Cahan, 153 AD3d 947, 950 [2017]). In determining whether there is an enforceable oral contract, ” ‘the court looks not to the parties’ after-the-fact professed subjective intent, but rather at their objective intent as manifested by their expressed words and conduct at the time of the agreement’ ” (Jump v. Jump, 268 AD2d 709, 710 [2000], quoting Winkler v. Kingston Hous. Auth., 259 AD2d 819, 823 [1999]). It is plaintiff’s burden to establish that the parties’ agreement was sufficiently specific to be enforceable (see Muhlstock v. Cole, 245 AD2d 55, 58 [1997]). Price is a material term of a contract (see Tufano v. Morris, 286 AD2d 531, 534 [2001]; Village of Lansing v. Triphammer Dev. Co., 193 AD2d 919, 920 [1993]). Here, the parties never “mutually assented” to the work to be performed. It is undisputed that defendant requested, but plaintiff never supplied, a cost estimate. Defendant’s unrebutted testimony was that the work was done in her absence and without her prior consent.

Plaintiff further asserts that defendant assumed the obligation to pay after the work was completed, based on defendant’s text message stating that she would send a check the following week. Defendant contends that this text was motivated by plaintiff’s threats to defame her and ruin her business. The text, however, is insufficient to create a contractual obligation where none existed before. “Past consideration is insufficient to support a contractual obligation” (Beitner v. Becker, 34 AD3d 406, 408 [2006]), except as specified in General Obligations Law §5-1105, which creates a limited exception for a “promise in writing and signed by the promisor” which expresses past consideration. A writing is only enforceable pursuant to section 5-1105 if it “contain[s] an unequivocal promise to pay a sum certain, at a date certain, and must express consideration for the promise” (Umscheid v. Simnacher, 106 AD2d 380, 381 [1984]). Here, the text message fails to satisfy the requirements of section 5-1105. Consequently, plaintiff’s action should have been dismissed."

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