Orchid Constr. Corp. v Tablada

[*1] Orchid Constr. Corp. v Tablada 2012 NY Slip Op 51446(U) Decided on July 18, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3348 Q C.

Orchid Construction Corp., Appellant,

against

Marko Tablada and John Malabre, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 15, 2010. The order granted defendants' motion to dismiss the complaint.

ORDERED that the order is modified by providing that the branch of defendants' motion seeking to dismiss the complaint insofar as asserted against defendant John Malabre is denied; as so modified, the order is affirmed, without costs.

Plaintiff commenced this action, by summons and endorsed complaint, to recover for renovation work it had performed at an apartment owned by defendant Marko Tablada. Defendants moved to dismiss the complaint, contending that plaintiff was an unlicensed home improvement contractor and, thus, had failed to comply with CPLR 3015 (e). Defendants further argued that the complaint failed to state a cause of action against defendant John Malabre (see CPLR 3211 [a] [7]). Malabre alleged that plaintiff had done work at Tablada's apartment, pursuant to a contract between plaintiff and Extel Development Corp. (Extel), which work was directed by Malabre, a project manager hired by Extel. In opposition to the motion, plaintiff asserted that it had been asked by Malabre to perform additional work at Tablada's apartment, beyond that which was called for under the contract with Extel. According to plaintiff, Malabre [*2]had negotiated the terms for the additional work and had requested that plaintiff have no contact with Tablada. Plaintiff further alleged that defendants had failed to compensate it for the additional work that had been performed on Tablada's apartment. In reply, Malabre denied being bound by a contract to pay for additional work allegedly performed by plaintiff at Tablada's apartment. The Civil Court granted defendants' motion to dismiss the complaint.

A cause of action for breach of contract or to recover in quantum meruit for contracting services against a consumer is subject to dismissal pursuant to CPLR 3211 (a) (7) if the plaintiff does not allege compliance with local licensing requirements (see CPLR 3015 [e]; Administrative Code of City of New York § 20-387 [a]; Enko Constr. Corp. v Aronshtein, 89 AD3d 676 [2011]; C.F.C. Commercial Flooring Contrs., Inc. v Sachs, 13 Misc 3d 143[A], 2006 NY Slip Op 52307[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff did not allege or prove that it was licensed to perform home improvement work, Tablada is entitled to the dismissal of the complaint insofar as asserted against him (see Orchid Constr. Corp. v Gottbetter, 89 AD3d 708 [2011]; Orchid Constr. Corp. v Gonzalez, 89 AD3d 705 [2011]). However, contrary to Malabre's contention, plaintiff's violation of the local licensing laws (Administrative Code of City of New York §§ 20-386, 20-387) provides no basis to bar plaintiff from recovering against him as Malabre is not a consumer within the meaning of CPLR 3015 (e).

In its endorsed complaint, plaintiff provided "a statement of the nature and substance of the cause of action" (Gounder v Upton Cohen & Slamowitz, 20 Misc 3d 141[A], 2008 NY Slip Op 51677[U] [App Term, 2d & 11th Jud Dists 2008]). In determining a motion to dismiss for failure to state a cause of action (see CPLR 3211 [a] [7]), we accord a plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83 [1994]). A court's role is simply to determine whether the facts, as alleged, fit into any valid legal theory (see generally Held v Kaufman, 91 NY2d 425, 432 [1998]). In the case at bar, we find that plaintiff has asserted a cognizable cause of action to recover damages for breach of contract against Malabre. Accordingly, the order is modified by providing that the branch of defendants' motion seeking to dismiss so much of the complaint as is asserted against Malabre is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 18, 2012