Defendant The Brooklyn Union Gas Company d/b/a National Grid NY (BUG) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint.

Plaintiff Perfetto Contracting Co. Inc. (Perfetto) alleges that it is entitled to compensation from BUG for "utility interference work" Perfetto had to perform in order to complete its street milling, trench restoration and sidewalk installation work performed pursuant to various contracts with the City of New York's Department of Design and Construction Division of Infrastructure (City). The City awarded Perfetto these contracts following a competitive bidding process in which Perfetto submitted the winning bid. At issue are four separate contracts: (1) a sidewalk installation project for various locations in Staten Island awarded to Perfetto on January 13, 2005 (Project I.D. HWS2005R); (2) a sewer trench restoration project for various locations in Brooklyn awarded to Perfetto on August 10, 2005 (Project I.D. SEQ002624); (3) a street milling project ^[FN1] for various locations in Brooklyn and Staten Island awarded to Perfetto on February 7, 2008 (Project I.D. HW2CR08A); and (4) another street milling project for various locations in Brooklyn and Staten Island awarded to Perfetto on April 27, 2009 (Project I.D. HW2CR09A).

In its complaint, Perfetto alleges that it performed all of the required work under each of these projects, and in doing so, performed all the work necessary to "locate, protect, maintain, relocate, adjust, alter, reconstruct and provide clearances for" BUG's utilities (i.e. "utility interference work"). Based on this utility interference work, Perfetto alleges eight causes of action demanding payment from BUG relying on theories of unjust enrichment (the first cause of action relating to the street milling projects, the fourth cause of action relating to the trench restoration project, and the seventh cause of action relating to the sidewalk installation project), negligence (the second cause of action relating to the street milling projects),^[FN2] breach of contract (the third cause of action relating to the trench restoration [*2]project and the sixth cause of action relating to the sidewalk installation project), and account stated (the fifth cause of action relating to the trench restoration project and the eighth cause of action relating to the sidewalk installation project).

In order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980] CPLR 3212 [b]). Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]). The parties' competing contentions are viewed in the light most favorable to the party opposing the motion (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]).

In moving for summary judgment, BUG contends that it has no duty to pay Perfetto for the utility interference work under any of the causes of action alleged in the complaint because BUG is not in contractual privity with Perfetto, because Perefetto's contracts are with the City and the contracts with the City encompassed utility interference work at issue, and, in any event, because BUG has made payments to the City relating to this utility interference work, at least with respect to the street milling projects. BUG's motion papers, through the affidavit of Brian McMorrow, a former director of BUG's field operations, and portions of Perfetto's contracts with the City demonstrate, prima facie, that BUG did not enter into a contract with Perfetto and that Perfetto's contracts are with the City. In opposing the motion, Perfetto does not contest these assertions, at least with respect to the street milling projects,^[FN3] but rather, asserts that, despite the absence of a direct contractual relationship, it is entitled to payment in light of the duties imposed on utility companies relating to utility interference work by the common law and provisions of the New York City Administrative Code (see Administrative Code of City of NY §§ 19-143, 19-149, 19-150 and 19-151).^[FN4] While [*3]plaintiff's complaint contains no reference to these statutory provisions, its opposition to the motion relies upon them.

As noted by the Court of Appeals, citing Administrative Code § 19-143[b], "It is undisputed that private utility companies serving the City and its residents have a practical and historic statutory and common-law obligation to pay all costs associated with protecting their facilities during street repair projects; these obligations include the removal, protection and relocation of their utility equipment . . . This unique obligation is a precondition to the privilege' to use City streets for the purpose of installing and maintaining utility equipment" (Diamond Asphalt Corp. v Sander, 92 NY2d 244, 249 [1998] see also City of New York v Verizon NY, Inc., 4 NY3d 255, 258 [2005] Matter of Consolidated Edison Co. of NY v Lindsay, 24 NY2d 309, 316 [1969] Transit Commn. v Long Is. R.R. Co., 253 NY 345, 351 [1930]). Since the utility interference work involves the property of private entities, "it is privately negotiated between the utilities and the contractors" (Matter of General Contrs. Assn. of NY v Tormenta, 259 AD2d 177, 179 [1999], lv denied 95 NY2d 754 [2000]). Generally, with respect to interference work, the utility has the option of performing the work itself, hiring its own contractor or using the City's contractor (see City of New York v Consolidated Edison Co. of NY, 114 AD2d 217, 220 [1st Dept 1986]). Historically, the utility customarily chooses to contract with the City's contractors (Diamond Asphalt Corp., 92 NY2d at 249). Regardless of the option chosen, the utility has a duty to see that its facilities are moved and/or protected and to pay for the task (see City of New York v Verizon NY, Inc., 4 NY3d at 258; Matter of General Contrs. Assn. of NY, 259 AD2d at 179).^[FN5]

Important to the determination of BUG's obligations here, BUG did not have the option of doing nothing and leaving the interferences in place, thereby causing delay to the [*4]project (see City of New York v Consolidated Edison Co. of NY, 114 AD2d at 220). As noted by the Appellate Division, First Department in Necaro Co., Inc. v Eighth Ave. R.R. Co. (220 App Div 144 [1st Dept 1927]), a case involving a sewer construction project underneath the defendant railroad's tracks:

"When the defendant [railroad] failed [to perform the work necessary to protect its tracks], the city had the right to make the repairs; and, as the railroad company was bound to take care of its structure under such circumstances, it may not impose the cost thereof on the city by simply disregarding the notice duly served, requiring it to do the work and giving it a fair opportunity to comply with the demand. Necessary improvements may not be obstructed by a failure to act on the part of the railroad company. If it fails to perform its obligations, the municipality may cause the work to be done at the company's expense" (id. at 146).

"When the point in the work where such shoring was necessary was reached and defendant refused to care for its structure, it became necessary for plaintiff to do so, in order to complete the work called for by its contract and to avoid a breach thereof. The plaintiff was, therefore, compelled to perform work which the law required defendant to do. Under the circumstances, the contractor is entitled to recover the fair and reasonable cost thereof" (id. at 148).

BUG also contends that the utility interference work was actually included in the scope of Perfetto's contracts with the City in light of language describing the general nature of the project and the catch-all phrase in the titles of the contracts stating "Together With All Work Incidental Thereto" and language in the project description sections of the contracts stating "All other work incidental thereto." Given the generally private nature of utility interference work for which the utility is responsible (Diamond Asphalt Corp., 92 NY2d at 249; Matter of General Contrs. Assn. of NY, 259 AD2d at 179), this court does not find that this catch-all language encompasses the utility interference work at issue, especially since, as shown by the portions of the contracts submitted by Perfetto, the language expressly requiring Perfetto to perform utility interference work relates exclusively to City-owned structures. It is apparent that the "work incidental thereto," referred to in the City contracts related to City-owned property and not that of defendant utility. While the Appellate Division, Second Department in Lizza Indus. v Long Is. Light. Co. (44 AD2d 681 [2d Dept 1974], appeal dismissed 36 NY2d 754 [1975]) barred a contractor's claim against a utility because the utility interference work was specifically included in the contractor's contract with the municipality, that decision is inapposite in that the contract at issue in Lizza Indus. expressly included such work and the decision was not based on an ambiguous catch-all phrase taken out of context (Lizza Indus., 44 AD2d at 681-682; see also Paterno & Sons, [*6]52 AD2d at 595-596). Moreover, deeming the utility interference work to be within the intended scope of the project bid on by Perfetto would appear to be problematic in light of the Court of Appeals' holding in Diamond Asphalt Corp. that utility interference work is private work for the benefit of the utility that cannot be included in the public work bidding process (Diamond Asphalt Corp., 92 NY2d at 254-266).

BUG's final contention is that it has already paid the City $125 per casting or gas box pursuant to BUG's "longstanding" policy and that Perfetto may not, therefore, obtain any further recovery from BUG. Even assuming that BUG made such payments and that the payments relate to the utility interference work performed by Perfetto,^[FN9] BUG's assertion merely raises an issue of fact with respect to the reasonable value of the work per casting. Perfetto asserts, in its complaint verified by its president, that the reasonable value of the utility interference work was $362.89 per casting belonging to BUG.

With respect to the unjust enrichment causes of action pled by Perfetto, BUG primarily contends that Perfetto cannot state such a cause of action against BUG because Perfetto performed its work at the behest of the City (see Hampton Living v Carltun on the Park, 286 AD2d 664, 665 [2d Dept 2001] Outrigger Constr. Co. v Bank Leumi Trust Co., 240 AD2d 382, 383 [2d Dept 1997], lv denied 91 NY2d 807 [1998]). As discussed above, however, given the unique common-law and statutory duties imposed on BUG with respect to utility interference work, BUG assumed an obligation to pay Perfetto when it failed to perform the work itself or arrange for the work to be performed on its behalf (Paterno & Sons, 52 AD2d at 595-596; Necaro Co., Inc., 220 App Div at 148). Thus, the elements of unjust enrichment, or quasi contract implied in equity, are established. BUG's additional contention that the unjust enrichment cause of action is barred because Perfetto's contracts with the City cover the same subject matter is rejected because, as discussed above, Pefetto's contracts do not specifically encompass the utility interference work at issue (see Diamond Asphalt Corp., 92 NY2d at 249; Paterno & Sons, 52 AD2d at 595-596; cf. Mariacher Constr. Co. v Kirst Constr., 187 AD2d 986, 987 [4th Dept 1992]). Having determined that Perfetto may properly seek relief directly from BUG in the context of the unjust enrichment causes of action, numerous issues remain to be determined at trial, including which of BUG's facilities Perfetto moved/protected, the reasonable value of such work, and whether BUG's alleged payments to the City relate to Perfetto's utility interference work (see Van Tulco, Inc. v City of New York, 62 AD3d 567, 568 [1st Dept 2009], lv denied 13 NY2d 709 [2009] Paterno & Sons, 52 AD2d at 595-596).

Turning to the breach of contract and account stated causes of action, these causes of [*7]action relate to the utility interference work allegedly performed during the trench restoration and the sidewalk installation projects. In contrast to the street milling projects, with respect to which Perfetto concedes that it was unable to reach an agreement with BUG regarding the cost of the utility interference work, in opposing the motion with respect to the breach of contract and account stated causes of action, Perfetto has submitted an affidavit from an agent acting on its behalf who asserts that he reached an oral agreement with BUG regarding the cost of the utility interference work on the trench restoration and sidewalk installation projects. In addition, Perfetto's president and this agent both assert in their respective affidavits that, based on the oral agreement relating to the cost of such utility interference work, Perfetto sent BUG invoices relating to such work that were received by BUG and retained without protest. These assertions are sufficient to demonstrate the existence of factual issues with respect to whether BUG entered into an agreement with Perfetto with respect to the price of utility interference work as related to trench restoration and sidewalk installation and whether BUG assented to the terms set forth in the invoices for purposes of an account stated cause of action (see Accent Collections, Inc. v Cappelli Enterprises, Inc., 94 AD3d 1026, 1026-1027 [2d Dept 2012] cf. Simplex Grinnell v Ultimate Realty, LLC, 38 AD3d 600, 600 [2d Dept 2007]). Accordingly, the motion must be denied with respect to the breach of contract and account stated causes of action.

However, BUG is entitled to dismissal of Perfetto's negligence cause of action which is limited to claims relating to the street milling projects. While the violation of duties imposed by the common-law and the Administrative Code with respect to utility interference work may give rise to a tort-based duty (see DeMicco Bros., Inc., 8 AD3d at 99-100; see also Sommer v Federal Signal Corp., 79 NY2d 540, 551-552 [1992]), the injury and harm alleged here are strictly economic loss and do not warrant tort-based relief (see Sommer, 79 NY2d at 552; Verizon v Optical Communications Group, Inc., 91 AD3d 176, 181-182 [1st Dept 2011]). The damages Perfetto seeks with respect to its negligence cause of action are the same it seeks with respect to its unjust enrichment causes of action. Perfetto alleges that these damages constitute the reasonable value of the labor and material required to perform the utility interference work with respect to the street milling projects (See Verified Complaint, ¶¶ 12-13, 16, 19-20, 25). Such economic damages for BUG's failures, which in no way can be deemed catastrophic to Perfetto and which are not comparable to the tort damages provided in cases involving personal injury or property damage, are properly addressed as a quasi contractual claim and not as a negligence claim (see Verizon, 91 AD3d at 181-182; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 192-194 [2d Dept 2000], lv dismissed 96 NY2d 823 [2001] cf. New York Cent. Mut. Fire Ins. Co. v Glider Oil Co., Inc., 90 AD3d 1638, 1641 [4th Dept 2011]).

BUG's motion is granted only to the extent that plaintiff Perfetto's second cause of action premised on negligence is dismissed. The motion is otherwise denied.

The parties shall appear for conference on January 22, 2014.

This constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C.