New York Appellate Division Reports

PRONTI v. SMUTZINGER, 500822 [3d Dept 12-7-2006] 2006 NY
Slip Op 09094 MICHAEL J. PRONTI, Doing Business as BEST
CONSTRUCTION COMPANY and BEST HOME REPAIR SERVICE,
Appellant, v. ROBERT G. SMUTZINGER et al., Respondents.
500822. Appellate Division of the Supreme Court of New
York, Third Department. Decided and Entered: December 7,
2006

Appeal from an order of the Supreme Court (O’Shea, J.),
entered May 10, 2006 in Chemung County, which denied
plaintiff’s motion for summary judgment.

Michael J. Pronti, Elmira, appellant pro se.

Christopher Denton, Elmira, for respondents.

Before: CREW III, J.P., PETERS, MUGGLIN, ROSE and LAHTINEN,
JJ.

MEMORANDUM AND ORDER

LAHTINEN, J.

Defendant Robert G. Smutzinger, who was 80 years old, and
his wife, entered into a contract with plaintiff to have
their roof repaired at a cost of $1,860. Plaintiff contends
that he retained an independent contractor who completed
the project in a professional fashion and defendants have
not paid him any of the agreed upon amount. Defendants
assert, among other things, that the work was not done
correctly, plaintiff and his workers walked off the job
when told of Smutzinger’s dissatisfaction, and defendants
expended $1,958 to have another contractor repair the
faulty work and complete the job. Plaintiff commenced this
action for, among other things, breach of contract. In a
prior motion, Supreme Court ruled that plaintiff’s contract
failed to comply with various provisions of General
Business Law § 771 and, thus, that any recovery
would be under quantum meruit. Plaintiff subsequently made
a motion for summary judgment, which Supreme Court denied.
Plaintiff appeals.

We agree with Supreme Court that, under the remaining
theory of quantum meruit, there are several factual issues,
including the quality and value of plaintiff’s work. The
contractual language upon which plaintiff purports to rely
is no longer relevant in light of Supreme Court’s prior
order (cf. Hausen v Academy Print. & Specialty Co., 34 AD2d
792, 792 [1970]) and, in any event, such language is not
dispositive under the facts of this case. Plaintiff’s motion
was properly denied (see generally Moran v Tech. Bldg.
Servs., 258 AD2d 697, 698 [1999]). The remaining arguments
have been considered and found meritless.

Crew III, J.P., Peters, Mugglin and Rose, JJ., concur.

ORDERED that the order is affirmed, with costs.