Jandous Electric Construction Corp. v. City of New York ( 1982 )

— Order of the Supreme Court, New York County (Okin, J.) entered June 22, 1981 which granted defendant’s motion for summary judgment on plaintiff’s first cause of action and which denied it as to the second cause, reversed, to the extent appealed from, without costs, on the law and the facts, and defendant’s motion for summary judgment is granted as to plaintiff’s second cause of action. Plaintiff and the New York City Transit Authority, acting as defendant’s agent, entered into a contract for improvement of the Queens Village Bus Depot. The contract specified August 6, 1973 as the completion date. Because of the initial unavailability of the job site and delays caused by other subcontractors, the completion date was extended, at plaintiff’s request, to January 10, 1975. A final certificate of completion was filed May 19, 1976. Plaintiff contends that by reason of the delays it incurred additional expenses, not contemplated at the time of the entry into the contract, for electricity, labor and additional labor. Accordingly, it sued to recover the sum of $22,188.76 alleged to represent these additional expenses plus profit to which it claims entitlement. The complaint contains two causes of action. The first cause is bottomed in contract; the second is founded in quantum meruit for expenses and work, labor and services performed and seeks recovery for the same costs and profits as are sought by the first cause. The city moved for summary judgment. Special Term granted the motion as to the first cause but denied it on the second, and the city appeals. The contract provides that action thereon shall be commenced within one year after the date of filing of the final certificate of completion. This action was commenced on March 12,1979. Since the final certificate of completion was issued on May 19, 1976, somewhat more than two and one-half years prior to the commencement of the action, Special Term properly held that that cause was barred by the time limitation contained in the contract. We are in disagreement, however, with Special Term’s conclusion that the costs and profits for which recovery is sought on the second cause of action were outside the scope of the contract and, therefore, enforceable in an action in quantum meruit. The services rendered by plaintiff were necessary to enable it to comply with its contractual obligation. Although unforeseen by plaintiff at the time it entered into the contract, the services rendered did not entail change orders nor did they effect more than the contract required. The change in theory of action did not change its substance. It remains an action founded upon the contract. In such case the remedy of quantum meruit is not available (Miller v Schloss, 218 NY 400; Robinson v Munn, 238 NY 40). Neither the complaint nor the answering affidavits furnish any basis warranting the conclusion that some hypothetical cause of action in quasi contract may be alleged. It is sufficient to point out that none has been set forth. Accordingly, the motion for summary judgment on the second cause of action should have been granted. Concur — Murphy, P. J., Sullivan and Bloom, JJ.