Precision Mirror & Glass v Dicostanzo
Annotate this CaseDecided on March 13, 2006
Civil Court of the City of New York, Richmond County
Precision Mirror & Glass, Plaintiff,
against
Ben Dicostanzo, Defendant.
33681 RCV 2004
Kenneth P. Sherman, J.
The defendant moves for summary judgment dismissing the complaint upon the grounds that the plaintiff is required to have a home improvement license. The Honorable Catherine DiDomenico had previously allowed the defendant to move orally for summary judgment without a written notice of motion, and set the matter down for the parties to submit papers in support and opposition to said motion. Although pretrial motions are generally made by a formal written notice of motion, a court may nonetheless entertain an oral motion when the parties are before the court and there is no prejudice to either side from the informal procedure (see Siegel, NY Prac § 243, at 409-410 [4th ed]). Both sides appeared in this matter and had the opportunity to submit affidavits and memoranda of law on the issue at hand. Clearly both sides had a full and fair opportunity to advocate on this motion and there is no prejudice to either side by allowing this motion without a formal written notice of motion. The motion appeared before this court on January 19, 2006, at which time the court reviewed the papers and heard oral argument. For the reasons stated below, the court grants the motion and dismisses the complaint. The court also notes that the parties have stipulated, and the court has so ordered, an amendment to the caption to reflect the name of the defendant as "Ben DiCostanzo".
This action was commenced by service of a summons and verified complaint in April of 2004. The complaint alleges that the defendant owes $6,246.00 pursuant to a breach of an agreement between the parties. The contract between the parties involves the manufacture and installation of three custom made shower doors, and one bathroom mirror. The defendant now argues, in addition to any other defenses he may have to this action, that this action is barred because the plaintiff does not have a home improvement license.
It is well settled that the courts will not entertain a lawsuit alleging breach of contract, or quantum merit, when a contractor is required by a municipality to be licensed and does not possess such license (see CPLR § 3015[e]; Todisco v. Econopouly, 155AD2d 441 [2d Dept. 1989]). This requirement is strictly construed and will be enforced even when the homeowner is aware the contractor does not possess a license and even when the homeowner planned to take advantage of the fact that the contractor was unlicensed (see Hughes & Hughes Contracting Corp. v. Coughlan, 202 AD2d 476 [2d Dept. 1994]). Pursuant to the Administrative Code of the City of New York, a person or firm undertaking to perform home improvements is required to be licensed as a home improvement contractor (see NYC Admin. Code §§ 20-387; 20-386). The parties do not dispute the fact that if the plaintiff is required to be licensed, the complaint must be dismissed. The plaintiff admits not having a home improvement license, however, he argues that [*2]the type of work contemplated pursuant to their contract is not a home improvement and therefore a license is not required.
The Administrative Code of the City of New York § 20-387 states, in pertinent part, "No person shall solicit, canvass, sell, perform or obtain a home improvement contract as a contractor or salesperson from an owner without a license therefor". The definition of home improvement includes " the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place and shall include but not be limited to the construction, erection, replacement, or improvement of driveways, swimming pools, terraces, patios, landscaping, fences, porches, garages, fallout shelters, basements, and other improvements to structures or upon land which is adjacent to a dwelling house" (see NYC Admin Code § 20-386).
The work contracted between the parties was for the installation of 3 custom made shower doors and a bathroom mirror, at a cost of $6,246.00. The shower doors in question were not pre-fabricated and had to be custom cut and installed. There can be no dispute that the doors had to be affixed to the structure of the home. Furthermore, as evidenced by the amount of this lawsuit, the doors were not inexpensive. Additionally, although not dispositive on the issue of whether or not the work was a "home improvement," the court notes that the plaintiff does routinely issue a Certificate of Capital Improvement, for sales tax purposes, for the installation of shower doors. Pursuant to the New York Tax Law § 1101(b)(9), a capital improvement is defined as "an addition or alteration to real property which..... substantially adds to the value of the real property... and becomes part of the real property or is permanently affixed to the real property so that removal would cause material damage to the property or article itself". Plaintiff in opposition to defendant's motion argues that the work contracted was a home improvement only in "an esthetic or cosmetic context". This statement is belied by the plaintiff's admission that he routinely issues a Certificate of Capital Improvement for work of this nature. If the work substantially (emphasis added) adds to the value of the property and is permanently affixed thereto, it would seem to the court that the work is not simply cosmetic or esthetic in nature.
Additionally, as previously noted, the cost of these doors is not minimal. The cost of the purported work to be done is clearly implicated in the underlying purpose of the licensing requirements. The purpose of the licensing requirements in the Administrative Code is to "safeguard and protect the homeowner against abuses and fraudulent practices" (see NYC Administrative Code § 20-385). This public policy concern, of protecting homeowners would not be at play in a case involving minor or purely cosmetic work. However, the work contemplated in this matter is neither minor nor inexpensive and the potential for fraudulent abuse by unscrupulous contractors is great.
Furthermore, the court is mindful of the safety concerns associated with shower doors. In researching this case the court could not find any cases directly on point as to whether a shower door is classified as a home improvement, however, in conducting that research the court did come upon numerous personal injury cases involving shower doors. It is clear that shower doors serve more than a merely cosmetic purpose and involve serious safety issues. To that end, the NYC Administrative Code has specific guidelines in reference to shower doors (see NYC [*3]Administrative Code § 27-651). Such safety concerns are at the heart of the licensing requirements.
The home improvement provisions of the New York City Administrative Code were enacted not simply to protect consumers from financial fraud, but were also enacted to protect consumers from the hazards of inferior workmanship (see B& F Building Corp. v. Liebig, 76 NY2d 689, 692 [1990]). The plaintiff in this matter was responsible for the manufacture and installation of an item that involves obvious and potentially hazardous safety concerns. The risk to homeowners is heightened by the fact that any defect in the manufacture or installation of the shower doors may not be visible to the untrained eye, subjecting the unsuspecting homeowner to the dangers of a latent risk for years to come. The court is not willing to lend its imprimatur to a contract that allows an unlicensed home improvement contractor to undertake work that carries such serious safety risks. Although not specifically listed as a home improvement under NYC Administrative Code § 20-386(2), that list is not exhaustive and this court holds it would be consistent with the intent of the Code, and in the best interest of homeowners, for this type of work to be undertaken only by licensed home improvement contractors.
After oral argument and due deliberation, based upon the papers both in support and opposition to the motion, the court finds the contract in question involved home improvement work as that term is defined in the Administrative Code of the City of New York. Therefore, since plaintiff admittedly has no such license, the court will not enforce any portion of that contract. Accordingly, the defendant's motion is granted and the plaintiff's complaint is hereby dismissed.
This constitutes the Decision and Order of this Court.
March 13, 2006_______________________
Kenneth P. Sherman
Judge of the Civil Court
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