The following papers numbered 1 to 15 were read on this motion by defendant, SILVANA GALASSO, for an order pursuant to CPLR 3212 granting defendant SILVANA GALASSO summary judgment dismissing the complaint against her; and for an order sanctioning the plaintiff for frivolous conduct:

Papers

Numbered

Order to Show Cause-Affidavits-Exhibits..............1 - 7

Affirmation in Opposition-Affidavits-Exhibits........8 - 12

Reply affirmation...................................13 - 15

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This is an action commenced by plaintiff to recover a money judgment in the amount of $1,533,777.09 for breach of a construction contract, unjust enrichment, fraud, misrepresentation and counsel fees. The complaint which was filed on October 13, 2010, alleges that the plaintiff, AMBROSINO [*2]CONSTRUCTION CORP., is a general contractor retained by the defendants in June 2006 to perform construction and renovation on the defendants' residence located in Sands Point, New York. The parties entered into a standard written construction contract dated June 22, 2006. The contract was signed by Michael Ambrosino on behalf of the plaintiff and by defendant/homeowner Philip Galasso. Subject to additions and deductions by change order, the contract sum was set at $2,930,000.00. After performing work pursuant to the contract, the plaintiff billed defendants for labor performed and materials supplied in the sum of $2,379,002.42. It is alleged that to date the defendants have paid plaintiff a total of $1,125,000.00 and have failed or refused to pay the balance of $1,254,002.42.

Plaintiff commenced the instant action by filing a summons and complaint on October 13, 2010. Defendants were personally served at their residence but failed to answer. In March 2011, the plaintiff moved for an order granting a default judgment against the defendants based upon their failure to answer the summons and complaint. The defendants, although duly served with the motion, failed to respond. By decision dated March 21, 2011, this Court granted a default judgment against all defendants without opposition and set the matter down for an inquest/assessment of damages. The inquest was held before this Court on May 10, 2011. A judgment in the amount of $1,533,777.09 was entered against all three defendants on July 18, 2011.

On September 21, 2011, defendant Silvana Galasso brought an Order to Show cause to vacate the money judgment entered against her and filed and recorded in the Office of the Queens County Clerk on July 18, 2011, on the ground that she has a reasonable excuse for the default and a meritorious defense. This court found that defendant Silvana Galasso presented a reasonable excuse for the default and a meritorious defense. Said defendant's motion to vacate the default judgment pursuant to CPLR §5015(a)(1) and 5015(a)(3) was granted, and the default judgment dated March 21, 2011, the order after inquest held on May 10, 2010, and the money judgment entered July 18, 2010 were ordered to be vacated as against Silvana Galasso.

Ms. Galasso thereafter served an answer with affirmative defenses dated January 27, 2012. Depositions of the parties took place on July 24, 2012. A note of issue was filed on February 14, 2013. Based upon the factual allegations set forth above, the complaint against Silvana Galasso contains five causes of action, including breach of a construction contract, unjust enrichment, fraud, misrepresentation and counsel fees. [*3]

Defendant Silvana Galasso now moves for an order granting summary judgment dismissing the complaint against her on the ground that the evidence in the record fails to factually support defendant's liability for any of the alleged causes of action.

The plaintiff, Antonio Ambrosino, president and sole owner of Ambrosino Construction Company testified at his deposition that he previously obtained a judgment against Philip Galasso, Silvana's husband, for over a million and a half dollars. He stated that to date he has not made any efforts to collect the judgment against Philip Silvana other than putting a lien on his house and making a request for him to pay the judgment. Ambrosino testified that he never entered into a contract with Ms. Silvana Galasso and that the written construction contract for work to be performed for 2.9 million dollars was signed only by Philip Galasso. He states that although Silvana did not sign the contract, he is suing her because she is also an owner of the house where he performed construction services. He stated that he never discussed the contract, costs or collection of funds with Silvana. He stated that Philip usually instructed the contractor as to the work to be performed although Silvana was always present with her husband.

Plaintiff further testified that when the job was changed to a time and materials job, it was Philip and not Silvana that told him of the change. Ambrosino stated that he never finished the work that was contracted for. He stated that to date the defendants paid $1,125,000 for the project. When the Galassos stopped payment on the project he never asked Silvana for the money owed, rather he always asked Philip. He stated that Silvana never wrote any checks in payment for the construction. In addition, Ambrosino testified that he never told Silvana that he was going to stop working on the project and only told her husband. He also stated that Silvana was involved in picking out materials for the job and that his claim against her is based upon her living in the house and her involvement in selecting doors, marble and glass for the project.

Silvana Galasso testified at a deposition on July 24, 2012. At the time of the deposition she was separated from her husband, Philip Galasso and had commenced divorce proceedings in 2010. She stated that she was married in 2003 and moved to 4 Shepherds Lane in 2005. At the time she moved into the house it was owned by Phil and Frank Galasso. She stated that her husband and his partner were real estate developers. She first met plaintiff, Ambrosino, when he began working at her home in 2007. She stated that the purpose of the construction was to build an addition for [*4]her husband's children from a prior marriage. She testified that she told her husband that she objected to the construction project because she felt that his daughters, who were in their twenties, did not need rooms in their house. However, over her objection, her husband signed a contract and told her he would pay for the extension. She stated that during the construction she lived with her children in homes in Southampton, Florida and Port Washington. Beginning in 2009 there was no longer construction at the house. She stated that she never had conversations with her husband regarding the details of the construction and she never instructed anyone from Ambrosino to do or not to do anything regarding construction.

Ms. Galasso also submits an affidavit dated April 10, 2013, stating that the complaint is based upon a written contract between plaintiff and Philip Galasso. She states that she never signed the contract. She states that she and Philip are in the midst of a contentious divorce proceeding. In addition, the affidavit states that she never requested that the plaintiff perform any work for her nor did she authorize plaintiff to do any work at her house nor did she agree to pay plaintiff any money.

Defendant contends that there is no legal or factual basis on which Ms. Galasso can be held liable in this action. Counsel asserts that based upon the deposition testimony of the parties, there is no dispute that Silvana did not sign the contract with Ambrosino, never instructed Ambrosino to do any work, and never agreed to pay the Ambrosino any money for the project. The testimony indicates that Ambrosino's contact was with Philip Galasso and Philip Galasso gave the plaintiff all the directions regarding the project and was responsible for the payment.

Counsel asserts that the first cause of action for breach of contract against Silvana should be dismissed because she was not a signatory to the contract. The copy of the contract submitted by the defendant contains only the signatures of Philip Galasso and Michael Ambrosino, Vice President of the plaintiff's corporation. Citing Outrigger Constr. Co. v Bank Leumi Trust Co., 240 AD2d 382 [2d Dept. 1987], counsel argues that the contractor could not assert a contractual cause of action against a party with whom it is not in privity.

With respect to the cause of action for unjust enrichment, counsel argues that the existence of the written contract precludes the assertion of a claim sounding in unjust enrichment (citing Metropolitan Electric Mfg. Co. v Herbert Constr. Co., 183 AD2d 758 [2d Dept. 1992]). Further, counsel argues that the [*5]performance rendered by the contractor was not rendered for the benefit of Ms. Galasso, rather she was at most an incidental beneficiary of the work performed which is not a sufficient basis to hold her liable. In addition, counsel argues that the deposition testimony indicates that Ms. Galasso neither requested nor agreed to pay for any work performed by the plaintiff and therefore she has not been unjustly enriched.

With respect to the cause of action for fraud, the complaint alleges that the defendants misrepresented that they would pay for the plaintiff's labor and materials. However, counsel argues that this claim should be dismissed because the evidence demonstrates that it was only Philip and not Silvana who promised to pay for the renovation project. Therefore, counsel argues that as Silvana never made any promises to the plaintiff he cannot assert that he relied on a false misrepresentation from her.

Lastly, counsel asserts that defendant is entitled to summary judgment on the cause of action for counsel fees because there is no evidence in the record that the defendant signed a contract which contained a provision providing for counsel fees.

In opposition, plaintiff's counsel Martin Chow, Esq., claims that the plaintiff was hired in 2006 to provide labor and materials for the renovation and construction of 4 Shephards Lane, Sands Point, pursuant to the contract annexed to the opposition papers. He states that when the construction commenced the property was owned by Philip Galasso and by Frank Galasso as Trustee for the PDJ Irrevocable Trust. At the end of 2009 the property was deeded by Philip to Silvana and Frank Galasso. Counsel argues that defendant's moving papers are insufficient to disprove that Silvana was not unjustly enriched by plaintiff's construction of an extension on her home. Counsel asserts that Silvana's testimony indicates that she was aware that her husband entered into the construction agreement with plaintiff and that she moved out during phases of the construction. Plaintiff contends that Silvana never advised the plaintiff that she was against the construction project, never registered any complaints concerning the construction nor did she instruct the plaintiff to cease construction at any time. Plaintiff contends that as Silvana was an owner of the property and resided in the house, which was improved by the construction, that she is more than an incidental beneficiary of the construction improvements. Defendant states that notwithstanding that Silvana was not a signatory to the contract, she benefitted and was unjustly enriched by the plaintiff's construction work. Plaintiff claims that by living and simply owning her home which was significantly improved by the construction, which has not been fully paid for, [*6]that she has been unjustly enriched at the plaintiff's expense. Counsel does not contest defendant's motion to dismiss the causes of action for breach of contract, fraud, misrepresentation and counsel fees.

Upon review and consideration of the defendant's motion to dismiss the complaint, the affirmation in opposition, and the reply thereto, this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

With respect to the first cause of action alleging breach of contract, this court finds that there is no dispute that the written construction contract was solely between the plaintiff and Philip Galasso who were the only signatories to the contract. Both plaintiff and defendant agreed that Ms. Galasso did not sign the contract, was not involved in negotiating the terms of the project, was she involved in making any changes to the contract nor was she responsible for making payments on the contract. Ambrosino testified that he never made any demands for payment from Ms. Galasso and only sought payment from Philip. Therefore. this court finds that the cause of action for breach of contract must be dismissed as the defendant correctly asserts that a contractual cause of action may not be asserted against a party with whom it was not in privity (see IMS Engineers-Architects, P.C. v. State of New York, 51 AD3d 1355 [3rd Dept. 2008]; Outrigger Constr. Co. v Bank Leumi Trust Co., 240 AD2d 382 [2d Dept. 1997]). Therefore, lacking privity plaintiff cannot maintain a breach of contract claim against defendant.

In addition, the cause of action for unjust enrichment must be dismissed. Because the plaintiff was not in privity with Ms. Galasso, the plaintiff cannot maintain an action against her to recover damages for unjust enrichment (see Sperry v Crompton Corp., 26 AD3d 488 [2d Dept. 2006]; Outrigger Constr. Co. v Bank Leumi Trust Co., supra. [to recover in unjust enrichment, it is not enough to show that the defendant consented to the improvements or received a benefit from the plaintiff's activities plaintiff must show that the performance was rendered for the defendant]). Here, it is clear that the construction was rendered solely for the benefit of Mr. Galasso, the signatory to [*7]the contract. Silvana made clear in her testimony and in her affidavit that she never requested or authorized the plaintiff to perform any work nor did she agree to pay for the project.

This court finds that the plaintiff failed to raise a question of fact with respect to whether the contract was intended for Ms. Galasso's benefit or whether the benefit to Silvana was more than merely incidental. The mere fact that the defendant received some benefit from the plaintiff's activities is insufficient to recover on a theory of unjust enrichment. Although the plaintiff showed that Philip signed the contract and made payments, the plaintiff failed to show that it was working for Silvana or that she was unjustly enriched by its work. (see Yellowstone Indus. v Vinco Marine Mgmt., 305 AD2d 587 [2d Dept,.2003]; Hampton Living, Inc. v. Carltun on the Park, Ltd., 286 AD2d 664 [2d Dept. 2001]. Therefore, since the plaintiff only contracted with Mr. Galasso and as there is no proof in the record that the Mrs Galasso assumed an obligation to pay the plaintiff or was more than an incidental beneficiary, the cause of action for unjust enrichment is dismissed.

With respect to the cause of action for fraud and misrepresentation, plaintiff testified that Silvana did not sign the contract and also testified that she never represented that she would make payments on the contract. Ambrosino stated that he only looked to Philip for payments. Therefore this court finds that as it was only Philip that promised to pay for the project and as Silvana never made any promises to the plaintiff with regard to the project, the plaintiff cannot assert that he relied on a false misrepresentations made by Silvana. Thus, as there is no clear and unambiguous promise made by Silvana upon which plaintiff could have reasonably relied, the cause of action for fraud must be dismissed (see Schutty v Speiser Krause P.C., 86 AD3d 484 [1st. Dept. 2011]). In addition, the alleged misrepresentations set forth in the fraud cause of action are not sufficiently distinct from the breach of contract cause of action to constitute a separate cause of action (see Church of South India Malayalam Congregation of Greater New York v Bryant Installations, Inc.,85 AD3d 706[2d Dept. 2011]).

With respect to counsel fees, under the general rule counsel fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" (Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]; also see Evergreen Bank, N.A. v Zerteck, Inc., 28 AD3d 925 [3d Dept. 2006]). Here, [*8]as stated above, Silvana was not a signatory to the contract and, moreover, the contract did not contain a provision for counsel fees.

Accordingly, for all of the above stated reasons, it is hereby

ORDERED, that the motion by defendant, Silvana Galasso, for an order granting summary judgment dismissing the complaint filed against her by Ambrosino Construction Corp. is granted and the complaint is dismissed against Silvana Galasso only, and it is further,

ORDERED, that the branch of the motion seeking sanctions against the plaintiff for an allegedly frivolous conduct is denied.

The clerk is directed to enter judgment accordingly.

Dated: July 30, 2013

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.