Minelli Construction Co. v. Volmar Construction Co. 917 NYS2d 687 (2nd Dept, Mar 1, 2011) Minelli was a subcontractor to Volmar on a renovation project for the NYC School Construction Authority (SCA). The SCA requested Volmar to perform certain masonry work as a change order. Volmar issued a letter of intent requesting Minelli to perform the work as as change order to their subcontract, and stating that the price of the work would be in the amount approved by the SCA. Minelli refused to perform the work on that basis, and refused to sign Volmar’s letter of intent. Minelli, however, did on several occassions give Volmar a quote for the work with a price of $498,000. Here’s the problem: At some point, and without getting anything in writing, Volmar directed Minelli to proceed with the work, and Minelli went ahead and did the work. Minelli was not paid because Volmar took the position that it never agreed to the price of the work. Volmar further contended that Minelli was bound by the letter of intent which required SCA’s approval. As a result Minelli filed a suit against both Volmar and its surety on a lien discharge bond. Minelli sued for both breach of contract and quantum meruit, and to foreclose its mechanics lien. The trial court entered summary judgment in favor of Minelli in full amount of its quote, which was affirmed on appeal. The court held: “Here, while a letter of intent to enter into a subcontract which was issued by Volmar to Minelli was expressly contingent upon approval of Minelli’s proposal by the SCA, the letter of intent did not constitute a binding contract, since it was merely an ‘agreement to agree’ … and was not signed by the parties.” “Rather, Minelli demonstrated, as a matter of law, that the parties’ contract was formed subsequent to the issuance of this letter by Volmar’s acceptance of Minelli’s written offer to perform certain masonry work for a fixed price of $498,000, through Volmar’s “acquiescent conduct’.” Based on various facts recited in the decision, Minelli proved that Volmar’s direction to perform the work constituted an objective manifestation of assent to Minelli’s price. “Further substantiating Volmar’s acceptance of Minelli’s price was the fact that it filed a notice of claim with the SCA to recover the sum of $498,000 for Minelli’s work, which amount it described in a sworn affidavit as ‘[t]he fair and reasonable value of the ….work’.” As a footnote: Because the court held that there was a binding contract between the parties based on Minelli’s quote, it reversed the trial court’s award based upon quantum meruit, which was Pyrrhic victory at best for Volmar.
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