Isogon Interim, LLC v Crnkovic

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Isogon Interim, LLC v Crnkovic 2004 NY Slip Op 30348(U) August 10, 2004 Supreme Court, New York County Docket Number: 122109/03 Judge: Herman Cahn Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART PRESENT: { y 0122109/2003 JSOGON LLC. INDEX NO. vs CKNKOVIC:, CEDEMIR MOTION DATE SEQ 1 DISMISS MOTION SEQ. NO. ACTION MOTION CAL. NO. I were read on this motion to/for The following papers, numbered 1 to 1 .. Notice of Motion/ Order to Show Cause Answering Affidavits - - Affidavits - Exhibits ... PAPERS NUMBERED I I Exhibits Replying Affidavits Cross-Motion: 1-d Yes [7 N o / Check one: J.S. C. 'd FINAL DISPOSITION u NON-FINAL DISPOSITION Check if appropriate: ]I DO NOT POST [* 2] SUPKEME COURT OF THE STATE OF NEW YORK ( OIJNTY OF NEW YORK: IAS PART 49 ............................................................... X ISOGON INTERIM, LLC, Plaintiff, Index No. 122109/03 -againstC RNKOVIC, CEDGMIR, Defendant . ................................................................ X CAHN, J. Dcfcndant, in this action to enforce a mcchanic s lien, move to disiiiiss the complaint and discharge the lien on the grounds that plaintiff is not n proper party, and that tlic complaint fails to state a cause of action upon which relief may be granted. CPLR 321 1 (a) ( l ) , (7). Thc complaint allcgcs the following relevant facts: On April 24, 2003, plaintiff Isogon L.L.C. (Isogon) contracted with c l e T e n d d ~ Po, Q C edcniir Crnkovic and his wife, Valerie Rubsamcn to repair and alter thc pr!%?itge;icwncd * . I ,.~ I, , by dcfcndants, locatcd at 327 Central Park Wcst, Unit PH C:&D, in Manhallan. Derendants promised to pay Isogon $437,572.82 for the work. Plaintiff performed the work, labor and sei-viccs it contracted to pcrform, h L i t defendants havc refused to pay plaintiff the balance due of $329,143.76, with intcrcst h m Septcinber 4, 2003. Plaintiff filcd a notice of lien against defendants properly -1- 011 &Q# j , September 9, 2003, I r [* 3] within foul- months aftcr final performance of the work, and the final furnishing of the matcrial. The notice of lien was dockcted in the County Clerk s office, and a copy was served upon defendants by certified mail. Plaintiff sceks to enforce the lien. Defendants move to dismiss, claiming that they iievcr signed a conh-act with a n entity known as Isogon, L.L.C. Defendants claim that they signed a homc hpr-oveiiicnl contract with Isogon Interim L.L.C., and that plaintiff has fiiled to allege that it is licensed by the City of New York as a homc improvenicnt contractor, citing Ncw Yorlc City Administrative Code 5 20-385 and 5 20-387. Plaintiff has cross-moved to amend the complaint to name Isogon Inteijiii L.L.C. as the plaintiff and to alleged that plaintiff is a licensed home improvcment contractor, and to dcny defendants motion to dismiss. Leave to amcnd pleadings is to be frcely given, in the abscnce of prejudice 01- surprise, upon a showing that the proposed amendment has mcrit. Centri,fkgal . ~ . S S O C . , Inr. v HighlnndMetal Indus., Inc., 193 AD2d 385 (1 Dcpt 1993); CPLR 3025 (b). Dcfendants have not offcred any objection to the application to amend the complaint t o reflcct plaintiffs true name, Isogon Interim L.L.C., and that brarich of plaintiffs application is grantcd. With rcspecl to thc branch of the motion which seeks to amend tlic complaint to nllcge that plaintiff is a licensed home-improvement contractor, plaintiff claims that it -2- [* 4] was licensed in Wcstchestcr County when it entcrcd into the contract with defcnciants, that its principal was licensed in New York City at all rclevant times, and that it acquired a Ncw York City license after it was no longer at work on this contract. None of these circumstanccs satisfies the licensing requircments of the Administrative Code with respect to homc jmprovcment contractors. NYC Admin Code 5 20-385, 5 20-387. I hat branch of the motion seeking to amend to allege that plaintiff was a licensed home improvement contractor is, therefore, dcnied. Plaintiff argues that the contract was not a home improvement contract, within the meaning of the Administrative Code, since dcfcndants were listcd at scvcral addrcsses in the New York City phonebook. In its reply, plaintiff raises for the first time that defendants havc admittcd that they were not living at the premises during thc period in question. A copy o f the parties contract, (Exhibit to defcndant Kubsameii s affidavit), to identifics the project as LLRenovatioas thc Rubsamen-Cmkovic Residcnce 327 Central Park West, Penthouse C/D. Plaintiff has hiled to offer evidence to rcbut thc plain languagc of the parties contract. Defendants have offered reasonable cxplanatioiis [or their numerous telephonc listings and their occupancy at a different residence diiriiig construction of the premises. In any event, mcrely having multiplc telephone listings would not by itself determine that thc premiscs in question is not a resideiicc. Plaintiff has hiled to come forward with evidence to rebut thesc explaiiations. -3- [* 5] There is 110 merit to plaintifrs objection that the prcmises were not defendaiits pi-iniary rcsidence. Thc statute does not limit the lioinc improveliiciit contractor s licensing requirenicnt to work pcrforined on primary residences. Ayre,s vnz~nhill Interiors, Ltd. (138 AD2d 303 [lstDept 19SSj), cited by plaintirf, does not rcquire a diffci-ciit result. In Ayres, the apartmciit owner had comnienced suit to stay arbitration, and the trial court had granted thc apartment owner s rnotion to dismiss the arbitration proceeding. On appeal, the First Departmcnt found that thc motion court had acccptcd the apartmciit owner s contciition that she was the tenant of thc apartment without a sufficient evidentiary basis. Thc owner had statcd that she had moved into tcmporary quarters during the period in question. IIowever, the contractor submittccl proof that the owner also owned three otlicr apartments on that same block, that all contract negotiations had taken place at the quarters alleged to bc temporary, which in h c t were fully-furnished, and that the telephone dircctory listed that tcmporary apartincnt iis plaintiffs residcrice for the period in question. Thc contractor here has failed to offer any cvidence of the quality or siibstancc offered in A j w s . Accordingly i t is ORDERED that plaintiffs motion is grantcd to the limited cxtcnt that the caption is to be amcndcd to change plaintiffs name to Isogon Interim, I,.L.C., and is denied in all othcr respects; aiid it is further -4- [* 6] ORDERED that defendants cross motion to dismiss the coiiiplaint is grmled a n d the complaint is dismissed, and plaintiffs two licns against the subjcct preniiscs ;ire ordered to be discharged; and it i s further ORDERED that the Clerk shall enter judgmcnt accordingly. ENTEK Datcd: August 10,2004 ~ J.S.C. -5-

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