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JOHN ANTHONY RUBINO COMPANY, CPA, P.C., Respondent, v. MARK H. SWARTZ, M.D., Appellant.

The record does not establish that, during the telephone conversation that gave rise to the parties' alleged oral contract, the parties used the term "on spec" to describe the arrangement for plaintiffs compensation. Accordingly, contrary to defendant's contention, the court properly declined to interpret the term. The court also properly determined that there was no contract because there was no meeting of the minds with respect to a material term of the contract, namely plaintiffs compensation ( see Gessin Elec. Contrs., Inc. v 95 Wall Assoc, LLC, 74 AD3d 516, 518-519).

The elements of quantum meruit and unjust enrichment were shown ( cf. Snyder v Bronfman, 13 NY3d 504, 508; Fulbright Jaworski, LLP v Carucci, 63 AD3d 487, 488-489). The record establishes that plaintiff had a reasonable expectation of payment, and that defendant received a benefit from plaintiff's services even though defendant's project ultimately failed. Plaintiff's 18-month delay in providing an invoice was insufficient to constitute a waiver of his claims; the instant circumstance involving a relationship between previously unacquainted parties is distinguishable from that in Umscheid v Simnacher ( 106 AD2d 380, 383), in which personal services rendered to an old friend were unaccompanied by any bills.

The court's award was reasonable and supported by the record.

[Prior Case History: 28 Misc 3d 1233(A), 2010 NY Slip Op 51585(U).]

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JOHN ANTHONY RUBINO CO. v. SWARTZ
(May 19, 2011)