Morrison v Tooma
Annotate this CaseDecided on March 3, 2005
District Court of Nassau County, Fourth District
Mario Morrison d/b/a PREMIER DRYWALL & SPACKLE, Plaintiff(s)
against
Wil Tooma, ALL-SIDE HOME IMPROVEMENT, Defendant(s)
SCF 7/05
Scott Fairgrieve, J.
Mario Morrison d/b/a Premier Drywall & Spackle has commenced this action to recover damages from All-Side Home Improvement, Inc., concerning two construction jobs. The defendant All-Side Improvement retained the services of the plaintiff to install sheetrock and spackle at 2 Crystal Lane, Westbury and 34 Lillian Lane, Plainview. The work at the two different job sites occurred during the fall of 2004.
The evidence shows that plaintiff is an unlicensed contractor who performed work on two residential homes in Nassau County. In fact, plaintiff has apparently filed a mechanic's lien against 34 Lillian Lane, Plainview.
The first question to be decided is whether plaintiff's failure to obtain a license from Nassau County shall bar any recovery. It is well established that an unlicensed contractor who has a direct contractual relationship with a homeowner is barred from recovery. See B&F Building Corp. v. Liebig, 76 NY2d 689.
However, courts have expressed a different approach when the dispute is between two contractors involving a homeowner's residence.
Nassau County Consumer Law § 21-11.1 defines a contractor as any person who owns or operates a home improvement business or who undertakes or offers to undertake or agrees to perform any home improvements in Nassau County.
"Home Improvement" is defined as repair, maintenance, replacement, remodeling, alteration, conversion, modernization, improvement or addition to any land or building, or that portion thereof which is used or designed to be used as a private residence or dwelling place for not more than three families: and shall include but not be limited to the limitation, construction, replacement, or [*2]improvement of driveways, swimming pools, porches, garages, fallout shelters, central heating or air conditioning systems, central vacuum cleaning systems, storm windows, awnings and other improvements to structures or upon land which is adjacent to a dwelling house. "Home Improvement" shall not in include (a) the construction of a new home building or work done by a contractor in compliance with a guarantee of completion of a new building project, or (b) the sale of goods or materials by a seller who neither arranges to perform nor performs directly or indirectly any work or labor in connection with the installation of the goods or materials, or (c) painting or decorating, or (d) residences owned by or controlled by the state or any municipal subdivision thereof, or (e) automatic fire alarm systems, or (f) burglar alarm systems.
A "home improvement contractor" is defined as an agreement between a contractor and an owner for the performance of a home improvement, and includes all labor, services and materials to be furnished and performed thereunder.
An "owner" is defined as any homeowner, tenant, or any other person who orders, contracts for, or purchases the home improvement services of a contractor, or the person entitled to the performance of the work of a contractor pursuant to a home improvement contract.
A "person" within the definition of "owner" is defined to be "an individual, firm, partnership, association or corporation."
Courts have held that consumer protection laws don't apply when the contract involves two contractors, even though the subject is a residential home. In Jack A. Corcoran Marble Co., Inc. v. Clark Const. Corp., 155 Misc 2d 49, 597 N.Y.S.2d 259 (App. Term, 1st Dep't 1993), the defendant contractor hired plaintiff to fabricate and install marble floors and walls in an apartment. The lower court granted the motion to dismiss because plaintiff did not possess a home improvement license. The Appellate Term reversed because: It is clear from the definitional language employed that the person seeking to invoke the license requirements of the ordinance must actually reside in the dwelling unit in which the work is to be performed (see, Ayres v. Dunhill Interiors, Ltd., 138 AD2d 303, 526 N.Y.S.2d 440), and that an agreement between two (non-resident) contractors is not among the species of contracts whose enforcement the ordinance is designed to proscribe (see, Parker v. Vista Construction Concepts, Inc.,, 134 Misc 2d 1, 511 N.Y.S.2d 458).
Similarly, Kuchar v. Baker, 261 AD2d 402, 689 N.Y.S.2d 213 (App. Div. 2nd Dep't 1999) reached the same result: In any event, we note that if Kuchar did not have a license at the time the parties entered into the contract or at the time the work was performed, he would not necessarily have been barred from recovery in this case, since he alleged that the appellant was neither an owner of the premises at the time the agreement was entered [*3]into (see, Administrative Code of City of New York § 20-387[a]) nor a resident of the premises at the time that the work was performed (see, CPLR 3015[e]; Migdal Plumbing [Dakar], 232 AD2d 62, 65, 662 N.Y.S.2d 106; Ayres v. Dunhill Interiors, 138 AD2d 303, 526 N.Y.S.2d 440).
The court reached a similar result in Gelb v. T&B Anzalone, Inc., 6 Misc 3d 1001, 2000 WL 2980139 (Dist. Ct., Nassau Co. 2004), wherein the motion to dismiss was refused when the plaintiff general contractor (unlicensed) sued the subcontractor for unsatisfactory work involving a residential apartment.
See also, Routier v. Waldeck, 184 Misc 3d 487, 708 N.Y.S.2d 270 (Dist. Co., Nassau Co. 2000).
This Court will follow the above precedent and rule that plaintiff (unlicensed) is allowed to maintain the suit because the contract was with another contractor and not a homeowner.
This Court is not totally convinced that this is the result intended by Nassau County Sec.
21-11.1 concerning the licensing of contractors who perform improvements at residential properties. A copy of this decision is being sent to the Nassau County Legislature and Nassau County Consumer Affairs. This Court is requesting the Legislature to review the ordinance and amend same to clearly include contracts between contractors or subcontractors for home improvements, as being within the framework of the ordinance, if that in fact is the intent of the ordinance.
The next issue to be resolved is whether plaintiff can recover damages for the work completed at the two said properties. At trial, it was strongly contested whether plaintiff properly performed the work and to what extent plaintiff is entitled to recover damages.
This Court need not resolve the foregoing because an accord and satisfaction was reached between the parties. The parties signed separate documents indicating that a zero balance was owed with respect to each job after plaintiff was paid for the jobs. The plaintiff's signature appears on each document which states paid in full and zero balance. See Reilly v. Barrett, 220 NY 170.
This plaintiff is barred from recovering any sums from defendant.
CONCLUSION
Plaintiff may maintain this action, even though unlicensed, where the contract is between two contractors involving work done for a homeowner.
The plaintiff's action is barred by the accord and satisfaction reached between the parties.
SO ORDERED: [*4]
DISTRICT COURT JUDGE
Dated:March 3, 2005
CC:Mario Morrison, pro se
Will Tooma
All-Side Home Improvement
SF/mp
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
