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Parol Collateral Agreement Can Be Alleged Where Written Contract Does Not Embody Entire Agreement/Where Existence of Contract Is Disputed, Causes of Action for Unjust Enrichment and Quantum Meruit Are Okay/Courts Can Not Excuse Failure to Strictly Comply with Lien Law Requirements

The Second Department noted:  proof of a parol collateral agreement is okay where the written contract is not intended to embody the whole agreement; where the existence of a contract is in dispute, causes of action for unjust enrichment and quantum merit are okay; courts do not have discretion to excuse strict compliance with Lien Law 11:

…”[A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement” … . Here, although the first cause of action was based on a written contract, the plaintiff stated a second cause of action based on the breach of an alleged oral agreement as to services not encompassed in the written agreement.

As to the third and fourth causes of action, where, as here, the existence of the contract is in dispute, the plaintiff may allege causes of action to recover for unjust enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract (see CPLR 3014…).

Lien Law § 11 provides that within 5 days before or 30 days after filing the notice of lien, a lienor “shall” serve a copy of such notice upon the owner, as relevant here, at the owner’s “last known place of residence.” However, the plaintiff’s affidavit of service of the mechanic’s lien demonstrates that the plaintiff failed to serve the notice of the mechanic’s lien in compliance with Lien Law § 11, as the notice was not sent to the defendants’ last known place of residence. As strict compliance with the statutory requirements is mandated and the courts do not have discretion to excuse noncompliance… . Thompson Bros Pile Corp v Rosenblum, 2014 NY Slip Op 06577, 2nd Dept 10-1-14

 

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