The operative facts are as simple as they are undisputed. The Defendant Domagalski needed medical attention and sought the care and treatment from Plaintiff Community Care. The parties contemplated that Domagalski's insurance company would be responsible for the majority of the cost and that Domagalski would be responsible for the co-payment. That did not happen. Community Care billed Domagalski $603.00 directly; he refused to pay.

The friction over non-payment ignited the present dispute. Community Care filed suit and Domagalski answered with a general denial and affirmatively alleged that the cost of care was excessive. Fletcher Affidavit at ¶14. Community Care moved for summary judgment; Domagalski submitted no written response. The matter was set for argument on April 4, 2016. Although the Court does not expect sophisticated legal papers by a pro se defendant and may even excuse the lack of a formal written response, the Court expects, when appearances are required, that the defendant appear. Domagalski failed to appear and the Court entered a default judgment against him with respect to liability and reserved on the issue of damages.

Damages depend upon the contract theory upon which liability is predicated. Contracts can either be expressed or implied, the difference being the kind of evidence offered to prove the contract. Express contracts are established by presenting the written instrument containing the expressed language of terms. Implied contracts are established where a court can fairly imply terms and assent thereto by the conduct of the parties (including silence) viewed in the light of surrounding circumstances. See generally Restatement of Contracts Second §4a.

Community Care argues that there was an expressed contract between the parties. Community Care says that it "provided the defendant medical care that he requested based on his own promise to compensate [Community Care] for the cost of those services provided him." Fletcher Affidavit at ¶13. The issue of course is where such a promise is evidenced. Community Care refers the Court to an executed written agreement between the parties that requires Domagalski to make a co-payment. This co-payment is, according to the agreement, the amount [*2]that Domagalski has agreed to pay Community Care. The co-payment agreement did not make and does not make Domagalski a guarantor for payment of the entire medical bill. The co-payment agreement contemplated that the insurance company would pay and the contract makes no provisions for failure of the insurance company to perform.^[FN1]

Although no express contract exists, the Court may find an implied contract based on the behavior of the parties and the circumstances surrounding the case. An implied "contract still requires such elements as consideration, mutual assent, legal capacity and legal subject matter. The conduct of a party may manifest assent if the party intends to engage in such conduct and knows that such conduct gives rise to an inference of assent" (Maas v. Cornell Univ., 94 NY2d 87, 94 [1999] (internal citations and quotations omitted)). Here, no proof beyond the co-pay agreement is offered. The essence of a contract is mutual assent— a meeting of the minds. Without proof that Domagalski assented to pay the entire medical bill, the Court declines to find either an express or implied contract.

This conclusion does not end the matter. The doctrine of quasi-contracts is applicable absence a contract expressed or implied. A quasi-contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another (Clark-Fitzpatrick v. Long Island R.R. Co., 70 NY2d 382 [1987]). ^[FN2] The common law courts invented quasi-contracts as a legal fiction. In truth, it is not a contract or a promise at all. Rather, it is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it. Thus, even in the absence of consent the contracting parties, a quasi-contract produces obligations in the same manner as actual contracts. See generally Restatement of Contracts Second §4b.

The quasi-contract doctrines available to Community Care are quantum meruit and unjust enrichment. The elements of quantum meruit claim are (1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefore, and (4) the reasonable value of the services rendered. Thomas J. Hayes & Associates, LLC v. Brodsky, 101 AD3d 1560 [3d 2012]). The elements of unjust enrichment claim are "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation and citations omitted] ).

Although similar in nature, their elements lacked prefect congruity. Significant to this case, is quantum meruit requires that Community Care had expected to be paid by Domagalski. Normally, when a party performs a job at its expense, the presumption is that it expects to be paid absent some sort of officious interloping. It may well be true and the Court suspects it is [*3]true, that Community Care had an expectation of compensation from Domagalski. But supposition is no substitute for evidence. On this motion, at this time, the Court is bereft of proof that either parties' expectation was that Domagalski would pay the full bill.

Nevertheless, Domagalski was unjustly enriched — he is not entitled to free medical care at plaintiff's expense. The pleadings and the summary judgment papers established that Domagalski received and benefited by Community Care providing him medical care and it would be unjust for not to pay. Therefore, Community Care's correct theory of recovery rests upon unjust enrichment.

Since a default by defendant failing to appear does not constitute an admission as to damages, it remains plaintiff's burden to prove its damages through competent evidence (Paulson v Kotsilimbas, 124 AD2d 513, 514 (1st Dept 1986]). Courts may enter a default judgment awarding damages without an evidentiary hearing only if the amount of damages is a liquidated sum, an amount capable of mathematical calculation, or an amount demonstrated by detailed affidavits — in essence, in the parlance of the statute, a "sum certain" (CPLR 3215 [a]). Therefore, unless the damages sought in an action are for a sum certain, damages may only be awarded against a defaulting party upon notice and "a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages" (Reynolds Sec., Inc. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]).

This case requires the exploration of the intersection between contract theory and the term "sum certain" in the issuance of a default judgment. No doubt that the Community Care would have billed Domagalski's insurance company $603.00.^[FN3] And if this were simply a case of enforcing a contract where the rates for particular services were set and thereby calculable, the Court would perform the math and award Community Care such damages without anything further.

However, this is not a contract case, as discussed above it is a quasi-contract case. In an unjust enrichment case "the proper measure of plaintiff's damages is the reasonable value of the services performed for defendant" (DG & A Mgmt. Servs., LLC v. Sec. Indus. Ass'n Compliance & Legal Div., 78 AD3d 1316, 1318 [3d dept. 2010]). Inquiry into reasonable value requires an inquest as to damages (Stephan B. Gleich & Associates v. Gritsipis, 87 AD3d 216 [2d Dept. 2011]).

The Court cannot determine the reasonable value of medical services provided to Domagalski without competent proof of the value. Further, Community Care is not saved from a hearing because it states that "the rates charged by the plaintiff are commensurate with the rates charged by other medical providers in the area for similar services," Fletcher Affidavit at ¶8 — this conclusory assertion is foundationally defective and thus, inadmissible. Therefore, the Court will conduct an inquest on damages. Based upon the foregoing, it is:

ORDERED that plaintiff's motion for summary judgment is granted, in part, and, denied in part, in accordance with the decision; and it is further

ORDERED that an inquest on damages will be held in Cohoes City Court on May 25, 2016 at 9:30 a.m.; and it is further

ORDERED that, at the hearing, plaintiff should be prepared to produce witnesses and [*4]documents to establish damages in accordance with the rules of evidence; and it is further

ORDERED that plaintiff shall serve upon the defendant a copy of its default application together with the supporting papers and a copy of this Decision and Order no later than May 16, 2016 and file with the Court proof of service upon defendant on or before May 20, 2016; and it is further

ORDERED that no additional written submissions or affidavits will be taken, allowed or considered unless subsequent to the hearing the Court deems submissions necessary to assist it in arriving at a decision on damages.

The foregoing constitutes the Decision and Order of the Court.