Jenkins v Engstrand

[*1] Jenkins v Engstrand 2015 NY Slip Op 51795(U) Decided on December 8, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1151 S C

Robert Jenkins Doing Business as Paint Effects, Appellant, -

against

Donald Daniel Engstrand, Jr., Respondent.

Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), dated April 24, 2014. The order, insofar as appealed from, granted the branches of defendant's motion seeking to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff, a painter, commenced this action to recover the balance allegedly due for home improvement work plaintiff had performed at defendant's residence located in Suffolk County, New York, pursuant to a written agreement between the parties.

Defendant moved to, among other things, dismiss the complaint, pursuant to CPLR 3211 (a) (1) and (7) and CPLR 3015 (e), on the ground that plaintiff did not have a license at the time he had performed the work in question, in violation of Code of Suffolk County § 563-17 (A), and that, therefore, pursuant to Code of Suffolk County § 563-8, plaintiff could not recover on the contract. In opposition to the motion, plaintiff conceded that he had been unlicensed, but argued that the work in question was exempt from the licensing requirement because it was performed on a new home (see Code of Suffolk County § 563-16).

Code of Suffolk County § 563-16 defines home improvement contracting as "any repair, remodeling, alteration, conversion, modernization, home raising or home elevating services, improvement or addition to residential property, and includes but is not limited to painting of residential structures . . . but shall not include the construction of a new home" (see also Code of Suffolk County § 517-1). "The statutory exemption for construction of a new home is limited to the creation of a structure, where none previously existed, that is to be used for residential purposes. 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" (J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 740 [2009] [internal quotations marks omitted]; see also Blake Elec. Contr. Co. v Paschall, 222 AD2d 264 [1995]).

We find that the documentary evidence submitted by defendant established that the work in question was being done to a pre-existing home, and therefore did not qualify as "construction of a new home" under Code of Suffolk County § 563-16. As plaintiff failed to raise a triable issue of fact in response to defendant's motion, the complaint was properly dismissed.

Accordingly, the order, insofar as appealed from, is affirmed.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Decision Date: December 08, 2015