Penna, Inc. v Ruben

Penna, Inc. v Ruben 2010 NY Slip Op 03155 [72 AD3d 523] April 20, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Penna, Inc., Doing Business as Dean Penna Corp., Appellant-Respondent,
v
Lenore Ruben et al., Respondents-Appellants.

—[*1] Justin M. Sher, New York, for appellant-respondent.

Mitchell Silberberg & Knupp, LLP, New York (James E. Schwartz of counsel), for respondents-appellants.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about September 25, 2009, which granted defendants' motion to dismiss the complaint to the extent of dismissing it as against defendant Lenore Ruben and denied it as to the remaining defendants, unanimously modified, on the law, the motion denied as to Ruben, and the complaint reinstated as against her, and otherwise affirmed, without costs.

Although the allegations in the complaint constitute a formal judicial admission that plaintiff engaged in construction and carpentry services for defendant Ruben, a homeowner (see Bogoni v Friedlander, 197 AD2d 281, 291-292 [1994], lv denied 84 NY2d 803 [1994]), the complaint nevertheless states a cause of action against Ruben, because it cannot be determined on the present record whether or not the construction and carpentry work were incidental or related to the painting that plaintiff performed (see Coggeshall Painting & Restoration Co. v Zetlin, 282 AD2d 364 [2001]), which was "not incidental or related to home improvement work"(Administrative Code of City of NY § 20-386 [2]) and for which plaintiff need not be a licensed home improvement contractor to recover (see Raywood Assoc. v Seibel, 172 AD2d 154 [1991]).

To the extent plaintiff has stated a valid cause of action against Ruben for foreclosure of [*2]its mechanic's lien, the remaining defendants were properly named as necessary parties (see Lien Law § 44 [1]). Concur—Mazzarelli, J.P., Friedman, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ.