Marciano Constr. Corp. v Stout

[*1] Marciano Constr. Corp. v Stout 2006 NY Slip Op 50874(U) [12 Misc 3d 1152(A)] Decided on March 22, 2006 Supreme Court, Bronx County Saks, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2006
Supreme Court, Bronx County

Marciano Construction Corp., Plaintiff,

against

John Stout and Geraldine Stout, Defendants.



15375/05

Alan J. Saks, J.

Plaintiff's motion seeks dismissal of defendants' first, second, and fourth affirmative defenses and leave to serve a reply to defendants' counter claims.

This action seeks foreclosure of a mechanics lien for materials and services furnished pursuant to a construction contract. The contract provided that, in exchange for an agreed upon sum of money, the plaintiff was to demolish an existing home and construct two new homes on the defendants' property. The defendants' answer contains five affirmative defenses and three counter claims.

The affirmative defenses involved on this motion are, that the plaintiff did not possess a valid New York City Department of Consumer Affairs home improvement contractor's license; that the complaint fails to comply with CPLR R3015(e); and that the complaint fails to state a cause of action.

The motion is granted in toto. The defendants have not opposed that portion which sought leave to serve a reply to the counter claims. Plaintiff's action is not barred by the New York City Administrative Code provisions, §20-385 et. seq., CPLR R3015(e), or General Business Law §771(h).

The Administrative Code of the City of New York ("Code"), provides: "[n]o person shall solicit, canvass, sell, perform or obtain a home improvement contract as contractor or salesperson from an owner without a license therefor." §20-387[a]. The Code defines home improvement as "the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement, or addition to any land or building ... to be used as a residence or dwelling place ... and other improvements to structures or upon land which is adjacent to a dwelling house." §20-386.

It is uncontested that the contract between the parties called for the total demolition of an [*2]existing home and the construction of two new homes on defendants' property. Moreover, it is undisputed that neither of the two new homes utilized what had been the foundation of the demolished house. As such, the contract here sued upon falls within the new-home exception to the rule that requires a contractor to have a valid home improvement contractor's license in order to enforce the contract. The facts of the instant action are distinguishable from those in Blake Electric Contracting Co., v.Michele M. Paschall and P.V.S., Inc., 222 AD2d 264 . In Blake, the contract called for alterations and renovations to existing dwelling units, converting two cooperative apartments into a single unit. "While the renovations ...are extensive, the work does not amount to the construction of a new home' so as to exempt it from the operation of the Administrative Code." Blake, at 266. "Even if... "the work requires gutting the two existing units, it still constitutes an alteration, conversion, renovation or improvement. The statutory exemption for 'construction of a new home' is limited to the creation of a structure, where none previously existed... . " The Court then stated, "Even if a dwelling is stripped to the frame and rebuilt, the work constitutes the renovation of an existing home, not the erection of a new one." id. Clearly, here, unlike in Blake, no portion of the defendants' original home was repaired, remodeled, altered, converted, rehabilitated, renovated, modernized, improved or added to.

The defendants' first, second, and fourth affirmative defenses are deemed dismissed and the plaintiff is granted leave to serve the reply to counter claim and shall serve same together with a copy hereof with Notice of Entry within thirty days after entry hereof by the County Clerk.

The foregoing shall constitute the decision and order of the Court.

Dated: May 16, 2006

ALAN J. SAKS, J.S.C.