William E. Bouley Co. v. EMA Holding Corp. , 54 A.D.2d 601 ( 1976 )

Judgment and order unanimously reversed, without costs, and motion denied. Memorandum: On July 7, 1974 premises owned by defendant, third-party plaintiff EMA, were destroyed' by fire and EMA hired third-party defendant National Fire Adjustment Co., Inc., to adjust the loss with EMA’s insurer. Plaintiff, William E. Bouley Co., Inc., a contractor, supplied estimates for the cost of reconstruction and now sues EMA for the value of its services rendered in supplying these estimates. EMA then instituted a third-party action seeking a determination that National was responsible for plaintiff’s charges and National asserted a counterclaim against EMA in which it alleged nonpayment by EMA seeking to recover on the contract for the adjustment services performed. Special Term granted National’s motion for summary judgment on its counterclaim, and dismissed EMA’s third-party complaint. The moving papers contain evidence that plaintiff was retained at the urging of EMA to prepare cost estimates in connection with the adjustment of EMA’s fire loss, that acting as EMA’s adjuster the third-party defendant worked with plaintiff, used its estimates in obtaining a settlement satisfactory to EMA, and that the third-party defendant told EMA it would pay plaintiff a reasonable fee for its services. Thus, there are issues of fact as to whether the contract of employment between EMA and third-party defendant was modified to provide that third-party defendant would be responsible for plaintiff’s reasonable compensation, and if so, the amount of that compensation (Appeal from order and judgment of Cayuga Supreme Court—summary judgment.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.