Jeffco Plumbing, Inc. v Annitto

[*1] Jeffco Plumbing, Inc. v Annitto 2012 NY Slip Op 50733(U) Decided on April 16, 2012 Supreme Court, Nassau County Sher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2012
Supreme Court, Nassau County

Jeffco Plumbing, Inc., Plaintiff,

against

James R. Annitto and Donna Annitto, Defendants



13965/11

Denise L. Sher, J.

Defendants move, pursuant to CPLR § 3211(a)(7), for an order dismissing each of the causes of action alleged in the Verified Complaint "on the grounds that the causes of action failed to state a cause of action." Plaintiff opposes the motion.

This is an action for breach of contract, account stated, quantum meruit and unjust enrichment. Plaintiff commenced the action with the filing of a Summons with Notice on or about September 28, 2001, and a Verified Complaint on or about October 28, 2011.

Defendants submit that plaintiff's Verified Complaint alleges four separate causes of action purportedly arising out of a verbal "Agreement" between plaintiff and defendants. Defendants state that the gravamen of the Verified Complaint is that, on or about May 3, 2009, plaintiff, a plumbing contractor, entered into an agreement with defendants to provide plumbing services to defendants at their private, single family home located at 15 Massapequa Avenue, Massapequa, New York. The Verified Complaint further alleges that the "Agreement" between the parties provided that defendants pay plaintiff $35,485.65 for the aforementioned plumbing services and materials and that defendants further agreed to a service charge of two percent (2%) per month for unpaid balances and attorney's fees. Plaintiff alleges that defendants failed and refused to pay the sum of $35,485.65 rightly due and owing to it pursuant to the "Agreement." Defendants submit that no copy of the purported "Agreement" was attached to the Verified Complaint.

Defendants first argue that the Summons with Notice alleges damages in the amount of $25,485.65, while the Verified Complaint alleges damages in the sum of $35,485.65. Defendants next argue that there is no allegation in the Summons with Notice nor the Verified Complaint that plaintiff is a duly licensed plumber, nor is there any allegation as to the license number for any license issued either by the Town of Oyster Bay (the municipality having jurisdiction over defendants' home) or by the Nassau County Department of Consumer Affairs. Defendants [*2]contend that "[t]here is no allegation as such because Jeffco is not licensed as a plumber by the Town of Oyster Bay or as a home improvement contractor by the Nassau County Department of Consumer Affairs. For this reason the complaint, and each and every cause of action thereof, must be dismissed."

Defendants submit that "[t]he town building code for the Town of Oyster Bay, Article VII entitled Plumber's License' provides at section 180-41 as follows: No person shall engage in the business of plumbing within the town until he shall first obtain a master plumber license therefor from the Division of Building.' Section 180-48 entitled Prohibited Acts' provides as follows: No person licensed pursuant to this chapter shall directly or indirectly allow his license to be used in connection with work not actually done by him or under his supervision.' CPLR Rule 3015(e) provides that where a Plaintiff's cause of action against a consumer arises from the Plaintiff's conduct of a business which is required by state or local law to be licensed.... the complaint shall allege, as part of the cause of action, that Plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license;....'"

Defendants, therefore, argue that plaintiff's Verified Complaint fails not only by reason of its failure to allege that plaintiff is a licensee and set forth the license number, but also fails because the Town of Oyster Bay and the County of Nassau have never issued either a plumber's license or a Department of Consumer Affairs license to plaintiff. In support of defendants' argument that the Town of Oyster Bay has never issued plaintiff a plumber's license, defendants provide the Affidavit of Anne Ayala, a legal assistant of the office of defendants' attorneys. Ms. Ayala states that she contacted the Town of Oyster Bay Building Department and was told that neither plaintiff, nor its principal, Jeffrey Aster, are licensed plumbers in the Town of Oyster Bay, nor have they been licensed since 1996 (which was as far back in time as her research would allow). See Defendants' Affirmation in Support Exhibit D.

Defendants submit that "[s]ince neither Plaintiff Jeffco nor its principal Jeff Aster, the president and principal owner of Jeffco was or is a licensed plumber, the omission from the pleading is fatal and can not (sic) be corrected. Accordingly, the complaint, in its entirety, must be dismissed, with prejudice."

In opposition to defendants' motion, plaintiff argues that said motion should be denied on the grounds that plaintiff has alleged facts in its Verified Complaint which, taken together, manifest causes of action for breach of agreement, account stated, quantum meruit and unjust enrichment. Plaintiff submits that "[o]n or about February 5, 2010, Plaintiff and Defendants entered into a verbal Agreement pursuant to which Jeffco agreed to provide Anitto (sic) with certain plumbing services and materials at the agreed upon value of $35,485.65....Jeffco provided, and Annitto approved, a verbal estimate of work to be performed at the Annittos' home located at 15 Massapequa Ave, Massapequa, New York 11758....Jeffco and Annitto agreed that the estimate of the work was to be approximately $40,000.00." Plaintiff claims that, on May 3, 2010, defendants received plaintiff's invoice for services performed and materials provided up to that point totaling $35,485.65....Defendants made payment to the Plaintiff in the amount of $10,000.00 leaving a total balance due and owing of $25,485.65....On or about May 24, 2010, Defendants advised Plaintiff that they did not have the money to pay the rest of the bill and that they did not want Plaintiff to finish the job....Defendants retained said Invoice without objection [*3]and never disputed the value of the work performed, other than to state that they did not have the money to pay."

Plaintiff further submits that "[s]ince in and around 2002, the plumbing work performed by Jeffco has been supervised by Anthony C. Bolen, a duly licensed plumber authorized to do plumbing work in the Town of Oyster Bay, Nassau County, New York, under license number OB939NR....The work performed by Plaintiff at the Premises was under the license and supervision of Anthony C. Bolen."

Plaintiff contends that "[e]xamining the four corners of the Complaint, it is evident that Plaintiff has pled sufficient facts to put the Defendants on notice that the Plaintiff seeks damages against Defendants for their alleged breach of contract, for an account stated, quantum meruit and unjust enrichment and that the allegations cover the substantive material elements that make up the particular causes of action relied on."

Plaintiff states that defendants' entire motion to dismiss is based solely upon the issue of whether or not plaintiff performed work at the subject premises pursuant to a valid plumbing license. "The one and only argument proffered by the Defendants, as to why the Complaint should be dismissed, is premised on the contention that Plaintiff was an unlicensed plumber, or performed work without the supervision of a licensed plumber." Plaintiff argues that defendants mistakenly relied upon the Town of Oyster Bay Building Code, Article VII, Section 180-41 and Section 180-48 to support their position. Plaintiff submits that the Town of Oyster Bay Building Code, Article VII, Section 180-48 states that, "no person licensed pursuant to this chapter shall directly or indirectly allow his license to be used in connection with work not actually done by him or under his supervision." (emphasis added). Plaintiff contends that the work done at defendants' premises was supervised by Anthony C. Bolen, a licensed plumber authorized to perform plumbing work in the Town of Oyster Bay and therefore there was no violation of the Town of Oyster Bay Building Code.

Plaintiff adds that "[d]efendants' reliance on CPLR § 3015(e) to support their argument, that the Complaint is defective on its face and must be dismissed, is also misplaced on the basis that Defendants omit from their argument key language of CPLR § 3015(e): that is applies strictly to Home Improvement licenses required by the Nassau County Department of Consumer Affairs. Under Local Law 6-1970, a plumber is not required to obtain a Home Improvement license....Accordingly, Plaintiff was not required, pursuant to CPLR § 3015(e), to allege in its Verified Complaint that Plaintiff was duly licensed as the Defendants contend in the instant motion."

Plaintiff further argues that, even if this Court determines that plaintiff violated the Town of Oyster Bay Building Code, Article VII, Section 180-41 and performed unlicensed work, said statute does not bar an unlicensed plumber from recovery for work performed.

In reply to plaintiff's opposition, defendants submit the Affidavit of Clifford M. Erickson, the employee of plaintiff who did all of the plumbing work in question at defendants' premises. Mr. Erickson states that he never saw Anthony C. Bolen at the subject premises where Mr. Bolen was allegedly supervising the plumbing work. Mr. Erickson states that no other plumber but he worked at defendants' home and, during the time that he was working at defendants' home, he was not a licensed master plumber nor did he have his plumbing license for any municipality in New York State. Mr. Erickson further states that Mr. Bolen never supervised him in any of his [*4]plumbing work done at any location on behalf of plaintiff. See Defendants' Erickson Reply Affidavit.

In determining a motion to dismiss pursuant to CPLR § 3211(a)(7) for plaintiff's alleged failure to state a cause of action/to state a claim upon which relief could be granted, the Court will afford the complaint a liberal construction, accept the facts contained therein as true, accord plaintiff every favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 614 N.Y.S.2d 972 (1994); Fay Estates v. Toys "R" Us, Inc., 22 AD3d 712, 803 N.Y.S.2d 135 (2d Dept. 2005); Collins v. Telcoa, International Corp., 283 AD2d 128, 726 N.Y.S.2d 679 (2d Dept. 2001).

CPLR § 3015(e) states, "License to do business. Where the plaintiff's cause of action against a consumer arises from the plaintiff's conduct of business which is required by state or local law to be licenses by...the Nassau county department of consumer affairs, the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license....The failure of plaintiff to comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter."

Nassau County Local Law 6-1970 is a law enforced by the Nassau County Department of Consumer Affairs. Its title is "Home Improvement Law." Article 1, Section 21-11.2 of said law states, "License required: Home Improvement business. No person shall own, maintain, conduct, operate, engage in or transact a home improvement business after January first nineteen hundred seventy two, or hold himself out as being able to do so after such date unless he is licensed therefor pursuant to this title." Article 21.11.10 contains "Exceptions" to the aforementioned licensing requirement. It states: "No contractor's license shall be required of any person when acting in the particular capacity or particular type of transaction set forth in this section.

1. An individual who performs labor or services for a contractor as an employee thereof. 2. A plumber, electrician, architect, professional engineer or any other such person who is required by state or local law to attain standards of competency or experience as a prerequisite toengaging in such craft of profession and who is acting exclusively within

the scope of the craft or profession for which he is currently licensed pursuant to such other law. (emphasis added)."

Chapter 180 of the Code of the Town of Oyster Bay deals specifically with "Plumbing."

Article I, Section 180.4 of the Code of the Town of Oyster Bay states, "[c]ompliance required. No new plumbing or drainage work, nor the extension or alteration of existing plumbing or drainage installations shall be undertaken or performed hereafter except in conformance with the provisions of this chapter." Article VI, Section 180.34 of the Code of the Town of Oyster Bay states, "[p]artnerships and corporations. A partnership or corporation may establish, engage in or carry on the business of plumbing under a master plumber's license granted in accordance with the provisions of this section to a master plumber who is the principal stockholder in such business, holds an office in that business and will be responsible for the carrying on of such business in accordance with the provisions of the laws, ordinances and [*5]regulations of the state, county and town applicable to said business." Article VIII, Section 180.40 of the Code of the Town of Oyster Bay governs "Plumbers' Licenses" and states, "[r]equired. No person shall engage in the business of plumbing within the town until he shall first obtain a master plumber's license therefor from the Division of Building." Article VIII, Section 180.48 of the Code of the Town of Oyster Bay, also under the heading of "Plumbers' Licenses" states, "[p]rohibited acts. No person licensed pursuant to this chapter shall directly or indirectly allow his license to be used in connection with work not actually done by him or under his supervision."

As previously mentioned, plaintiff argues that "[u]nder Local Law 6-1970, a plumber is not required to obtain a Home Improvement license....Accordingly, Plaintiff was not required, pursuant to CPLR § 3015(e), to allege in its Verified Complaint that Plaintiff was duly licensed as the Defendants contend in the instant motion." However, as noted above, the exception for plumbers under Local Law 6-1970 exists when said plumber,as required by state or local law to attain standards of competency or experience as a prerequisite to engaging in such craft of profession is acting exclusively within the scope of the craft or profession for which he is currently licensed pursuant to such other law. (emphasis added). In the instant case, defendants have provided evidence that the Town of Oyster Bay never issued either plumber's license to plaintiff prior to engaging in the plumbing work for defendants' premises. Plaintiff does not dispute this fact, but instead argues that the work done at defendants' premises was supervised by Anthony C. Bolen, a licensed plumber authorized to perform plumbing work in the Town of Oyster Bay and therefore in compliance with Article VIII, Section 180.48 of the Code of the Town of Oyster Bay. However, nowhere in the Affidavit provided by Anthony J. Bolen does he state where and/or how he supervised the work performed at defendants' premises. In fact, defendants provided the Affidavit of Clifford M. Erickson, the unlicensed plumber employed by plaintiff, who performed all of the plumbing work at issue at defendants' premises and never saw Mr. Bolen at said premises allegedly supervising the work. Furthermore, plaintiff in the instant action is a corporation. Therefore, Article VI, Section 180.34 of the Code of the Town of Oyster Bay applies requiring that "[a] partnership or corporation may establish, engage in or carry on the business of plumbing under a master plumber's license granted in accordance with the provisions of this section to a master plumber who is the principal stockholder in such business, holds an office in that business and will be responsible for the carrying on of such business in accordance with the provisions of the laws, ordinances and regulations of the state, county and town applicable to said business." Jeffrey Aster is the President of plaintiff corporation and did not have a master's plumber's license when his company did the work on defendants' premises.

The Court finds that plaintiff does not fall under the exception to CPLR § 3015(e) because it was not a "plumber,as required by state or local law to attain standards of competency or experience as a prerequisite to engaging in such craft of profession is acting exclusively within the scope of the craft or profession for which he is currently licensed pursuant to such other law." (emphasis added). Plaintiff was not licensed according to the requirements set forth in the Code of the Town of Oyster Bay, nor did plaintiff provide any evidence that it had any type of license to engage in the craft of plumbing.

Since plaintiff did not fall under the exception to CPLR § 3015(e) and did not allege in its Verified Complaint that it was duly licensed, the Court finds plaintiff's Verified Complaint to be [*6]fatally defective and therefore must be dismissed.

The Court has considered plaintiff's remaining contentions and concludes that they are insufficient to defeat defendants' motion to dismiss stated portions of the Verified Complaint.

Accordingly, defendants' motion, pursuant to CPLR § 3211(a)(7), for an order dismissing each of the causes of action alleged in the Verified Complaint on the grounds that the causes of action failed to state a cause of action is hereby GRANTED.

This constitutes the Decision and Order of the Court.

E N T E R :

DENISE L. SHER, A.J.S.C.

XXX

Dated: Mineola, New York

April 16, 2012