Defendant Eileen B. Kassner (hereinafter Kassner) and her husband, defendant Mark A. Kassner, own a home located at 8 Maria Court in Rexford, Saratoga County. On November 19, 2009, Kassner signed a "Contract of Sale" (hereinafter Contract) with plaintiff to install an indoor swimming pool in a building adjacent to the home. The Contract included a total purchase price of $56,850.00, indicating that there may be an "extra charge for fill/stone if necessary." Then, on November 22, 2009, Kassner hired Homecrafters to construct the building for the indoor pool, with a "total job cost" of $120,000.00. The building was thereafter constructed and the pool installed, with the entire project completed in the spring of 2010.Subsequent to the Contract being signed, certain modifications were made resulting in a reduced purchase price of $56,750.00 — which price was undisputedly paid by defendants in full. With that said, according to plaintiff, the following additional items were necessary to complete the pool in accordance with defendants' specifications: 10 loads of sand at $300.00 per load for a total of $3,000.00; 11 loads of stone at $350.00 per load for a total of $3,850.00; 1,150 square feet of stampcrete concrete at $14.00 per square foot for a total of $16,100.00; cantilever pool edge for a total price of $1,800.00; 60 square feet of regular concrete at $8.00 per square foot for a total of $480.00; and a deck drain for $750.00. Plaintiff demanded payment in the amount of $25,980.00 for these additional items and defendants paid only $9,000.00, refusing to pay the remaining $16,980.00. Plaintiff then commenced this action to recover the amount due and owing. Plaintiff asserts four causes of action: (1) breach of contract; (2) unjust enrichment; (3) [*2]an account stated; and (4) entitlement to counsel fees. Issue has now been joined with defendants asserting five counterclaims: (1) breach of contract; (2) promissory estoppel; (3) unjust enrichment; (4) fraudulent misrepresentation; and (5) breach of implied warranty of fitness for a particular purpose. Presently before the Court is defendants' motion to dismiss the complaint and plaintiff's cross motion for summary judgment. The motion and cross motion will be addressed in seriatim.

Defendants first contend that the complaint must be dismissed under CPLR 3211 (a) (7) for failure to state a cause of action. "On a motion to dismiss for failure to state a cause of action, [the Court] must afford the pleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory'" (Nelson v Capital Cardiology Assoc., P.C., 97 AD3d 1072, 1073 [2012], quoting Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450, 1452 [2010]).

With that said, the first cause of action alleges that a Contract was formed between the parties, that plaintiff performed fully under the Contract and defendants failed to perform and, finally, that plaintiff suffered damages as a result. The Court therefore finds that plaintiff has sufficiently stated a cause of action for breach of contract (see New York State Workers' Compensation Bd. v SGRisk, LLC, 116 AD3d 1148, 1153 [2014]; Torok v Moore's Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [2013]).

Turning now to the second cause of action, plaintiff alleges that defendants have been unjustly enriched because they accepted and retained all of the materials and services provided under the Contract while failing to remit payment for the same. The Court therefore finds that plaintiff has sufficiently stated a cause of action for unjust enrichment (see DerOhannesian v City of Albany, 110 AD3d 1288, 1291 [2013], lv denied 22 NY3d 862 [2014]; Georgia Malone & Co., Inc. v Rieder , 19 NY3d 511, 516 [2012]; Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]).

With respect to the third cause of action, plaintiff alleges that three separate invoices were sent to defendants relative to the $16,980.00 in additional charges and all of them were retained without objection. The Court therefore finds that plaintiff has sufficiently stated a cause of action for an account stated (see Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993]).

Finally, with respect to the fourth cause of action, plaintiff alleges that it is entitled to counsel fees under the terms of the Contract. Indeed, the Contract expressly provides as follows: "In the event this agreement shall be placed with an attorney for collection, [b]uyer agrees to pay all costs of collection including reasonable attorneys' fees." The Court therefore finds that plaintiff has sufficiently stated a cause of action for its entitlement to counsel fees and declines to dismiss the complaint under CPLR 3211 (a) (7) for failure to state a cause of action.

Defendants next contend that the complaint must be dismissed under CPLR 3211 (a) (5) because the full amount of the Contract — namely $56,750.00 — was paid to plaintiff (see CPLR 3211 [a] [5]). "A motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint on the ground of payment may be granted where the documentary evidence establishes the defense of payment as a matter of law" (Parkoff v Stavsky, 109 AD3d 646, 647 [2013] [citation omitted]).

Here, the documentary evidence establishes that defendants paid the total purchase price of $56,750.00. With that said, however, the Contract expressly indicates that "extra charge[s]" may arise for fill/stone. All of the causes of action in the complaint in fact pertain to these extra charges. To the extent that the documentary evidence fails to establish that these extra charges were paid, the Court finds that defendants are not entitled to dismissal of the complaint under CPLR 3211 (a) (5).

Finally, defendants contend that the complaint must be dismissed under CPLR 3211 (a) (10) for plaintiff's failure to join a necessary party. In this regard, CPLR 1101 (a) provides, in pertinent part: "Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." Here, defendants contend that Extreme Heating & Cooling, Inc. (hereinafter EHC) — the company which apparently installed the dehumidification system in the pool building — was plaintiff's subcontractor and must be joined as a necessary party. Plaintiff, on the other hand, contends that EHC was not its subcontractor and was contracted separately by defendants to install the dehumidification system after the Contract was executed by the parties. In this regard, plaintiff notes that installation of a dehumidification system is not included in the Contract and, further, that Eileen Kassner expressly admitted to paying EHC directly for its services.

Under the circumstances, the Court declines to dismiss the complaint under CPLR 3211 (a) (10) for plaintiff's failure to join a necessary party. All of the causes of action in the complaint arise from plaintiff's contractual relationship with defendants and, as such, EHC is not a necessary party for complete relief to be accorded between the parties. To the extent that defendants may have a claim against EHC for its alleged failure to properly install the dehumidification system, such claim may be asserted in a third-party action (see CPLR 1007).

Based upon the foregoing, defendants' motion to dismiss is denied in its entirety.

Plaintiff cross-moves (1) for summary judgment on the issue of liability; and (2) for summary judgment dismissing defendants' counterclaims.

On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

Turning first to plaintiff's cross motion for summary judgment on the issue of the liability, plaintiff has submitted a copy of the Contract signed by the parties, together with the affidavit of its owner, Frank Del Gallo, who states that "[e]ach and every item which was provided for in the Contract, was delivered and accepted by the defendants." Del Gallo further states that "[t]here were several items which needed to be invoiced following performance of the initial [C]ontract including excess stone and fill' which defendants were fully aware of with . . . provision [therefor] in the original contract . . . ." Finally, Del Gallo states that "defendants were invoiced for the additional materials which had been received and accepted by them for a total of $25,980.00" and that "defendants made a payment of $9,000.00 on this invoice, leaving a [*3]balance of $16,980.00." Based upon the foregoing, the Court finds that plaintiff has established its prima facie entitlement to summary judgment on the issue of liability with respect to its first cause of action alleging breach of contract (see Kool-Temp Heating & Cooling v Ruzika, 6 AD3d 869, 869-870 [2004]; Bombardier Capital v Reserve Capital Corp., 295 AD2d 793, 794 [2002]), thus shifting the burden to defendants to raise a triable issue of fact.

In this regard, defendants have submitted a joint affidavit contending that plaintiff failed to perform under the Contract because it did not install a dehumidification system in the pool building. Defendants further contend that plaintiff inflated its prices and the "final $9,000[.00] payment more than cover[ed] the extra charge for fill/stone' if, in fact, it was provided."

"It is well settled that a contract which is unambiguous must be enforced according to its terms" (Ruthman, Mercadante & Hadjis v Nardiello, 260 AD2d 904, 906 [1999]; see Erie Blvd. Hydropower, L.P. v State of New York, 113 AD3d 906, 907 [2014]). Here, there is nothing in the Contract to indicate that plaintiff was responsible for the installation of a dehumidification system. Further, defendants' contention that plaintiff's prices were inflated is wholly conclusory and unsupported by competent evidence (see Matter of Vosilla, 121 AD3d 1489, 1494 [2014]). Indeed, defendants themselves readily admit that they "hav[e] no familiarity with constructing a building nor installing a pool." The Court therefore finds that defendants have failed to raise a triable issue of fact and grants plaintiff's cross motion for summary judgment on liability with respect to its first cause of action for breach of contract.

Turning now to plaintiff's second cause of action for unjust enrichment, it is by now well established that "[t]he existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract or unjust enrichment for occurrences or transactions arising out of the same matter" (Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1202-1203 [1998]; see State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1161 [2008]). Here, there exists a valid and enforceable Contract governing the subject matter of this action. The Court therefore denies plaintiff's cross motion for summary judgment on the issue of liability relative to its second cause of action. Additionally, the Court exercises its discretion to search the record and dismisses the second cause of action for unjust enrichment as duplicative of the first cause of action for breach of contract (see CPLR 3212 [b]; State of New York v Industrial Site Servs., Inc., 52 AD3d at 1161).

With respect to plaintiff's third cause of action, the Court notes that "[a] cause of action alleging an account stated cannot be utilized simply as another means to attempt to collect under a disputed contract" (Simplex Grinnell v Ultimate Realty, LLC, 38 AD3d 600, 600 [2007] [citations omitted]; see Martin H. Bauman Assoc. v H & M Intl. Transp., 171 AD2d 479, 485 [1991]). Here, the damages sought by plaintiff on its breach of contract cause of action are identical to those sought on its cause of action for an account stated. The Court therefore denies plaintiff's cross motion for summary judgment on the issue of liability relative to its third cause of action. Again, the Court exercises its discretion to search the record and dismisses plaintiff's third cause of action for an account stated as duplicative of its first cause of action for breach of contract (see CPLR 3212 [b]; Simplex Grinnell v Ultimate Realty, LLC, 38 AD3d at 600).

Finally, the Court finds that plaintiff has established its prima facie entitlement to summary judgment on the issue of liability relative to its fourth cause of action seeking counsel [*4]fees and, further, that defendants have failed to raise a triable issue of fact in opposition thereto. As set forth above, the Contract expressly provides for counsel fees in the event of a collection action.

Based upon the foregoing, plaintiff's cross motion for summary judgment on the issue of liability is granted relative to its first cause of action for breach of contract and its fourth cause of action for counsel fees and the cross motion is otherwise denied. Plaintiff's second and third causes of action for unjust enrichment and an account stated, respectively, are dismissed as a matter of law.

The Court turns now to plaintiff's cross motion for summary judgment to dismiss defendants' counterclaims. With respect to the first counterclaim, defendants contend that plaintiff is liable for breach of contract because it failed to install a functioning dehumidification system in the pool building. Having found that installation of a dehumidification system was not included in the Contract, the Court concludes that plaintiff is entitled to summary judgment dismissing the first counterclaim and grants the cross motion in this regard.

With respect to the second counterclaim, defendants contend that, because they were losing the majority of their backyard to the pool building, Del Gallo promised to clear the remainder of the yard at no additional cost. According to defendants, they relied upon this promise when deciding to retain plaintiff and then incurred monetary damages in the amount of $33,185.00 when Del Gallo reneged and they were forced to hire an outside company to clear the land. In support of plaintiff's motion for summary judgment dismissing this counterclaim, Del Gallo states as follows: "[I] stated that I could potentially provide land clearing which would allow the defendants to have a backyard. However, at no point was it ever discussed that this service would be provided free of charge."

To succeed on a cause of action sounding in promissory estoppel, the aggrieved party must demonstrate " (1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom the promise is made, and (3) an injury sustained in reliance on the promise . . . " (Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 797 [2002], quoting Rogers v Town of Islip, 230 AD2d 727, 727 [1996] [citation omitted]; see Freedman & Son v. A.I. Credit Corp., 226 AD2d 1002, 1003 [1996]). Here, Del Gallo's statements create nothing more than a factual dispute as to whether a promise was made and relied upon by defendants. The Court therefore finds that plaintiff has failed to establish its prima facie entitlement to dismissal of the second counterclaim and denies the cross motion in this regard.

In their third counterclaim, defendants contend that plaintiff was unjustly enriched because it was paid the full amount of the Contract and failed to sufficiently complete the work outlined therein. Again, however, defendants point to the lack of a functioning dehumidification system in the pool building. Accordingly, the Court finds that plaintiff is entitled to summary judgment dismissing defendants' third counterclaim and grants the cross motion in this regard.

Turning now to the fourth counterclaim, defendants contend that plaintiff made fraudulent misrepresentations upon which they relied to their detriment when entering into the Contract. In seeking to dismiss this counterclaim, plaintiff again relies upon Del Gallo's affidavit indicating that no misrepresentations were made.

"Where . . . a party asserts a claim alleging that he or she was fraudulently induced to enter into a contract, the misrepresentations alleged in the pleadings must be more than merely [*5]promissory statements about what is to be done in the future; they must be misstatements of material fact or promises made with a present, albeit undisclosed, intent not to perform them'" (Edelman v Buchanan, 234 AD2d 675, 676 [1996], quoting Shlang v Bear's Estates Dev. of Smallwood, 194 AD2d 914, 915 [1993]). Again, Del Gallo's affidavit offers nothing more than a factual dispute as to whether the misrepresentations were made with a present intent not to perform them. The Court therefore denies plaintiff's cross motion for summary judgment insofar as the fourth counterclaim is concerned.

Finally, in their fifth counterclaim, defendants allege that plaintiff breached the implied warranty to deliver goods fit for a particular purpose (see UCC 2-315; Saratoga Spa & Bath v Beeche Sys. Corp., 230 AD2d 326, 331 [1997], lv dismissed 90 NY2d 979 [1997]). Inasmuch as this counterclaim also deals with the lack of a functioning dehumidification system, the Court finds that it too must be dismissed.

Based upon the foregoing, plaintiff's cross motion for summary judgment dismissing the counterclaims is granted to the extent that defendants' first, third and fifth counterclaims are dismissed and the cross motion is otherwise denied.

Inasmuch as defendants have requested the scheduling of a discovery conference in the event their motion is denied, the parties are hereby directed to appear for a conference on February 19, 2015 at 10:30 A.M. at the Saratoga County Courthouse.

Therefore, having considered the Affidavit of Eileen B. Kassner, Esq. with exhibits attached thereto, sworn to January 29, 2014, submitted in support of the motion; Affidavit of Mark A. Kassner, Esq., sworn to January 29, 2014, submitted in support of the motion; Affirmation of Daniel P. Maloy, Esq. with exhibits attached thereto, sworn to February 25, 2014, submitted in opposition to the motion and in support of the cross motion; Affidavit of Frank Del Gallo, sworn to February 21, 2014, submitted in opposition to the motion and in support of the cross motion; Memorandum of Law of Daniel P. Maloy, Esq., undated, submitted in opposition to the motion and in support of the cross motion; Reply Affidavit of Mark Kassner, Esq. and Eileen Kassner, Esq. with exhibits attached thereto, sworn to March 6, 2014, submitted in further support of the motion and in opposition to the cross motion; Reply Affirmation of Daniel P. Maloy, Esq., sworn to March 7, 2014, submitted in further support of the cross motion; Correspondence of Eileen B. Kassner, Esq., dated October 15, 2014; Correspondence of Mark A. Kassner, Esq., dated October 16, 2014; Correspondence of Thomas E. DeLorenzo, Esq. with exhibit attached thereto, dated October 20, 2014; and Correspondence of Eileen B. Kassner, Esq., dated October 23, 2014, it is hereby

ORDERED that defendants' motion to dismiss is denied in its entirety; and it is further

ORDERED that plaintiff's cross motion for summary judgment on the issue of liability is granted relative to its first cause of action for breach of contract and its fourth cause of action for counsel fees and the cross motion is otherwise denied; and it is further

ORDERED that plaintiff's second cause of action for unjust enrichment and its third cause of action for an account stated are dismissed as duplicative; and it is further

ORDERED that plaintiff's cross motion for summary judgment dismissing defendants' counterclaims is granted to the extent that the first, third and fifth counterclaims are dismissed as a matter of law and the cross motion is otherwise denied; and it is further

ORDERED that the parties shall appear for a conference on February 19, 2015 at 10:30 [*6]A.M. at the Saratoga County Courthouse; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been returned to counsel for plaintiff for filing and service with notice of entry. The Notice of Motion dated January 29, 2014 and Notice of Cross Motion dated February 28, 2014 have been filed by the Court together with the above-referenced submissions.

Lake George, New York

____________________________________

Robert J. Muller, J.S.C.