Opinion
2012-11-15
CARIBBEAN DIRECT, INC., etc., Plaintiff–Appellant, v. DUBSET, LLC, et al., Defendants–Respondents.
Frank M. Graziadei, P.C., New York, (Frank M. Graziadei of counsel), for appellant. Gabriel Salem, Brooklyn, for respondent.
Frank M. Graziadei, P.C., New York, (Frank M. Graziadei of counsel), for appellant. Gabriel Salem, Brooklyn, for respondent.
FRIEDMAN, J.P., CATTERSON, RENWICK, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered October 17, 2011, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the quantum meruit claim, unanimously reversed, on the law, without costs, and the motion denied.
“[T]o establish a claim in quantum meruit, a claimant must establish (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” ( Moses v. Savedoff, 96 A.D.3d 466, 471, 947 N.Y.S.2d 419 [1st Dept. 2012] [internal quotation marks omitted] ).
Defendants do not dispute the first two elements. With respect to the third element, they contend that plaintiff (a) did not expect compensation for any services other than the development of Dubset LLC's website and (b) should be estopped from arguing that it expected compensation for any such services. However, defendants failed to raise these arguments until their reply papers below, when plaintiff had no chance to respond. ( see e.g. Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562, 582 N.Y.S.2d 712 [1st Dept. 1992] ). Were we to reach the merits, we would note that “[t]he question of whether a party had a reasonable expectation of compensation for services rendered is a matter for the trier of fact to determine based on the evidence before it” ( Moors v. Hall, 143 A.D.2d 336, 338, 532 N.Y.S.2d 412 [2d Dept. 1988];see also Brennan Beer Gorman/Architects, LLP v. Cappelli Enters., Inc., 85 A.D.3d 482, 483, 925 N.Y.S.2d 25 [1st Dept. 2011] ).
Regarding the fourth element of quantum meruit, defendant Stein testified at his deposition that Brian Miller, who is affiliated with plaintiff, (a) sent him an e-mail with the number of hours that plaintiff had spent developing Dubset's website and (b) estimated that plaintiff had spent $30,000–$40,000 developing the site. Stein further testified that, from the above data, he could deduce that plaintiff spent $100–$200 per hour to develop the website. That is some evidence of the value of plaintiff's services ( see Rolleston–Daines v. Estate of Hopiak, 263 A.D.2d 883, 885, 694 N.Y.S.2d 225 [3d Dept. 1999] [plaintiff's “own cost estimates” were “the most probative evidence of the reasonable value of the services rendered”]; see also Brennan, 85 A.D.3d at 484, 925 N.Y.S.2d 25).