Motion by the plaintiff for an order pursuant to CPLR § 3212 granting summary judgment in favor of the plaintiff and against defendant, is granted.

This action arises out of Long Island Lighting Company's (LIPA) attempt to collect unpaid electric service provided to the premises located at 800 Front Street, Hempstead, New York and owned by defendant 800 Front Street Corp. (800 Front Street) for the period January 27, 2004 through July 8, 2008. (The defendant in its opposing affidavit refers to the premises as 820 Front Street, Hempstead. In the License Agreement the premises is described as 820 Front Street. In the Amended and Restated License Agreement the premises is referred to as 800 Front Street. The legal description annexed to both documents is the same. Therefore, the court will refer to the subject property described in the legal description annexed to the aforesaid license agreements as the "premises.") [*2]

Long Island Health Associates Corp. (the Hospital) had occupied the premises as a tenant since at least October 3, 2000. The Hospital was a customer of LIPA when it filed for relief under Chapter 11 of the Bankruptcy Reform Act of 1978. The trustee in bankruptcy ceased his possession of the premises on January 27, 2004. The Hospital stopped operating at the premises as of January 27, 2004. A copy of the Amended Stipulation and Order (Exhibit 3 moving papers) states:

4.Landlord shall have no obligation to pay for the use of electricity at the Premises during the period from the conversion Date through January 27, 2004. The Trustee shall make arrangements directly with th Long Island Power authority ("LIPA") for payment of such electric costs. The Trustee shall have no obligation to pay for the use of electricity and/or gas at the Premises for any period after January 27, 2004.

A License Agreement dated December 30, 2003 between 800 Front Street and a joint venture comprised of Garden Company Inc., NREL, Inc. and Clear Bid, Inc. (collectively the licensee) concerning the licensee's use of the premises provides that the licensee would be responsible to reimburse 800 Front Street for expenses "incurred by" 800 Front Street, including electricity for the premises. Subsequent thereto the licensee and 800 Front Street signed an Amended and Restated License Agreement dated June 10, 2004 that also required the licensee to reimburse the landlord for electricity.

Payment of Certain Expenses. Licensee shall be responsible for reimbursement of the following expenses incurred by Owner solely with respect to the Premises, on a pro rata basis for the portion thereof attributable during the Term (collectively, the "Expenses"): (a) electricity, separately metered for the Premises; (b) natural gas, separately metered for the Premises.

The licensee vacated the premises on January 15, 2007. The premises was sold on July 8, 2008. LIPA is now seeking to recover $79,448.40 from 800 Front Street. The plaintiff has annexed copies of an account statement, as well as a running balance, showing the amount outstanding. Plaintiff alleges the account statement and running balance are part of the customer records kept in the ordinary course of business by LIPA. From January 27, 2004, 800 Front Street, as owner of the premises, received the full benefit of the electric service provided by LIPA. Plaintiff asserts that 800 Front Street did not request a name change on the account because it knew or should have known that LIPA would request a deposit from 800 Front Street as a new customer. As of July 7, 2004 LIPA's bills for electric service supplied to the premises were sent by mail to 800 Front Street's attorney. On several occasions 800 Front Street by its attorney sent payment for electric service provided by LIPA during the period in dispute. On July 15, 2005 a check in the amount of $10,425.04 was forwarded; another in the amount of $25,744.19 on July 15, 2005, and another in the amount of $10,541.27 on October 19, 2006.

In opposition defendant's counsel states he never requested a single bill for the premises in the name of 800 Front Street and is confused as to why 800 Front Street was ever even a party to the lawsuit. However, two of the aforesaid three checks were corporate checks in the name of 800 Front Street Corp.; the third check was written on the attorney's special IOLA account. Each of the cover letters refer to account no. 0075-7005-45-9, the same account number on all bills generated by LIPA at the premises for which [*3]it now seeks reimbursement.

The summons and complaint was served on 800 Front Street on June 5, 2006. A business such as defendant must have known by the time it was served with the summons and complaint that the licensee was not paying the electric bills, or put on notice to contact the licensee for reimbursement pursuant to the License Agreement. The CEO of 800 Front Street Corp. states that "he was shocked to see the excessive amounts charged since to [his] knowledge there has been an extremely limited use of electricity at the premises since 2003 when [the hospital] ceased its operations." Yet Exhibit C Estimated Expenses annexed to the License Agreement lists as an expense "Electricity: $3,000 per month." Defendant was a signatory to the License Agreement and aware of the $3,000 per month estimate for electricity.

LIPA has alleged three causes of action against 800 Front Street: breach of contract, quantum meruit and unjust enrichment.

The plaintiff is unable to produce any contract or expressed agreement or written application by defendant. There may be an issue on the first cause of action as to whether there is an implied in fact contact based on inferences drawn from the facts and circumstances and the conduct of the parties in using the plaintiff's electricity at its premises, thereby indicating an intent to pay for same. (See In the Matter of Boice, 226 AD2d 908, 910).

800 Front Street is liable to LIPA under the theories of both unjust enrichment and quantum meruit. Unjust enrichment and quantum meruit are theories under which a party may seek damages in an action sounding in quasi contract. (See generally 22 NYJur2d Contracts, § 532 [2005]). Under the doctrine of quantum meruit, a party may recover the value of work, labor or services. (Moors v Hall, 143 AD2d 336; Umscheid v Simnacher, 106 AD2d 380; Roberts v Grandview Dairy, Inc., 20 AD2d 574). The doctrine of quantum meruit is used to prevent unjust enrichment of one party at the expense of another in the absence of a valid contract. (Martin H. Bauman Assoc., Inc. v H & M Int'l Transport, Inc., 171 AD2d 479). LIPA meets all the elements required to prevail in an action for damages under the theory of quantum meruit: (a) LIPA provided services in good faith; (b) 800 Front Street, to whom the services were rendered, accepted the services by using them; (c) LIPA had an expectation of compensation for the services provided; and (d) LIPA has shown the reasonable value of the services rendered. (Moors v Hall, supra). Since LIPA billed 800 Front Street at rates and according to terms set down in its tariff and in state law, the reasonable value for these services is the tariff rates. The New York Public Service Law embodies a comprehensive regulatory scheme for public utilities operating within the state and has exclusive jurisdiction over public utility rates. As long as the charges being enforced are those on file with the Public Service commission they are the only lawful charges that may be collected. No departure from the filed rates is permitted. (Poor v NYNEX, 230 AD2d 564).

Although the defunct, bankrupt Long Island Health Corp. was the "customer" listed on the LIPA bill, the defendant had actual knowledge that the Long Island Health Corp. ceased occupying the premises in December, 2003, and contracted with the licensee to reimburse the defendant for any electrical charges at the premises.

To prevail on the theory of unjust enrichment, there must be a showing that: (a) the [*4]defendant was enriched; (b) such enrichment was at the plaintiff's expense, and (c) in equity and good conscience, defendant should be required to return the money or property to the plaintiff. (Ptachewich v Ptachewich, 96 AD2d 582, 583). 800 Front Street received services worth $79,448.40 from LIPA. These services were provided by LIPA at its own expense and under penalty of law. (See New York Public Service Law § 65(3); 16 NYCRR § 13.10; Matter of Capital Properties Co. v Public Service commission, 91 AD2d 726). In equity and good conscience, 800 Front Street is required to make LIPA whole. Plaintiff has established that the sum of $79,448.40 based on the theories of unjust enrichment and quantum meruit. The Nassau County Clerk is directed to enter judgment in favor of the plaintiff, Long Island Lighting Company against defendant 800 Front Street Corp. in the sum of $79,448.40.

Dated: January 25, 2010

_________________________

Ute Wolff Lally, J.S.C.