A. Montilli Plumbing & Heating Corp. v. Valentino

• Decision Date: 27 December 2011
• Citation: 90 A.D.3d 961,2011 N.Y. Slip Op. 09572,935 N.Y.S.2d 647
• Parties: A. MONTILLI PLUMBING & HEATING CORP., respondent, v. Rudolpho VALENTINO, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09572

90 A.D.3d 961

935 N.Y.S.2d 647

A. MONTILLI PLUMBING & HEATING CORP., respondent,

v.Rudolpho VALENTINO, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 27, 2011.

David H. Ledgin, Mineola, N.Y., for appellants.

Hopkins & Kopilow, Garden City, N.Y. (Nicholas F. Miraglia of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Nassau County (Winslow, J.), entered August 31, 2010, which, after a nonjury trial, is in favor of the plaintiff and against the defendants Rudolpho Valentino and Jorge M. Perez in the principal sum of $27,713.

ORDERED that the appeal by the defendant Rodolfo Valentin Salon is dismissed, as it is not aggrieved by the judgment appealed from ( see CPLR 5511); and it is further, ORDERED that the judgment is affirmed insofar as appealed from by the defendants Rudolpho Valentino and Jorge M. Perez; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

“In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, bearing in mind that due regard must be given to the decision of a trial judge who was in the position to assess the evidence and the credibility of witnesses” ( D'Argenio v. Ashland Bldg., LLC, 78 A.D.3d 758, 758, 910 N.Y.S.2d 550; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Golding v. Gottesman, 41 A.D.3d 430, 430, 837 N.Y.S.2d 719).

Here, the Supreme Court did not err in finding in favor of the plaintiff on its cause of action alleging breach of contract insofar as asserted against the defendants Rudolpho Valentino and Jorge M. Perez (hereinafter together the individual defendants). The plaintiff showed, by a preponderance of the credible evidence, that the individual defendants breached an oral agreement pursuant to which they agreed to pay the plaintiff directly for the plumbing work performed in the construction of their hair salon ( see generally Flexible Bus. Sys., Inc. v. Dag Media, Inc., 49 A.D.3d 808, 808–809, 853 N.Y.S.2d 907; DiLorenzo v. Estate Motors, Inc., 44 A.D.3d 702, 703, 842 N.Y.S.2d 721).

“The existence of an express agreement, whether oral or written, governing a particular subject matter precludes recovery in quasi-contract for events arising out of the same subject matter” ( Morales v. Grand Cru Assoc., 305 A.D.2d 647, 647, 759 N.Y.S.2d 890). Upon the determination that there existed a valid and enforceable oral agreement between the plaintiff and the individual defendants, the plaintiff could not recover for unjust enrichment insofar as asserted against the individual defendants ( see Clark–Fitzpatrick, Inc. v. Long...