Colorito v Crown Heating & Cooling, Inc.

[*1] Colorito v Crown Heating & Cooling, Inc. 2005 NY Slip Op 50082(U) Decided on January 27, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: January 27, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
2004-236 OR C

FRANK J. COLORITO, JR., Appellant,

against

CROWN HEATING & COOLING, INC., Respondent.

Appeal by plaintiff from decisions of the Justice Court, Village of Greenwood Lake, Orange County (S. Newman, J.), dated October 22, 2003, dismissing plaintiff's action and finding in favor of defendant on its counterclaim, deemed (see CPLR 5520 [c]) an appeal from a small claims judgment of the same court, entered October 23, 2003, awarding defendant the sum of $2,814 on its counterclaim.

Judgment unanimously reversed without costs and matter remanded for a new trial.

Substantial justice was not done between the parties in accordance with the rules and principles of substantive law (UJCA 1804, 1807) in this small claims action to recover for breach of a home improvement contract, in which defendant counterclaimed to recover for work done for which it was allegedly not compensated. Given the paucity of the record on appeal, a new trial of all issues is appropriate.

In this context, we note that UJCA 1804 requires, in pertinent part, that "In every small claims action, where the claim arises out of the conduct of the defendant's business at the hearing of the matter, the judge. . . shall determine the appropriate state or local licensing or certifying authority and any business or association of which the defendant is a member." This was not done in the present matter; moreover, the question of whether defendant was properly licensed to do business in Rockland County, plaintiff's county of residence, where the work was performed, was never resolved. Without a showing of proper licensing, defendant was not entitled to recover upon its counterclaim (CPLR 3015 [e]; Laws of Rockland County §§ 286.3; 286.10; see [*2]generally B & F Bldg. Corp. v Liebig, 76 NY2d 689 [1990]).

Plaintiff's remaining contentions have been considered and are without merit.
Decision Date: January 27, 2005