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Subcontractor’s Breach of Contract Cause of Action Should Not Have Been Dismissed Despite Absence of Privity

The Second Department determined the motion for dismissal (CPLR 3211(a)(7)) of a breach of contract/quantum meruit cause of action brought by a subcontractor should not have been granted. The documents submitted by the defendant did not eliminate the possibility that the defendant’s dealings with the subcontractor could have given rise to a breach of contract action in the absence of privity:

Generally, a subcontractor may not assert a cause of action to recover damages for breach of contract against a party with whom it is not in privity … . Nevertheless, “a subcontractor can sometimes state a cause of action [alleging] breach of contract or unjust enrichment against the owner where direct dealing between the owner and the subcontractor justify imposing an obligation upon the owner despite the initial lack of privity between them” … . Vertical Progression, Inc. v Canyon Johnson Urban Funds, 2015 NY Slip Op 01939, 2nd Dept 3-11-15

 

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