CLE Assoc., Inc. v Greene

[*1] CLE Assoc., Inc. v Greene 2006 NY Slip Op 52541(U) [14 Misc 3d 1218(A)] Decided on November 1, 2006 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2006
Supreme Court, Kings County

CLE Associates, Inc., Plaintiff,

against

Adam D. Greene and Sylvaine L. Frances, Defendants.



5557/05

David I. Schmidt, J.

Upon the foregoing papers, defendants Adam D. Greene and Sylvaine L. Frances move, pursuant to CPLR 3211(a)(7), for an order dismissing the instant action on the ground that plaintiff CLE Associates, Inc. (CLE Assocs.) did not possess a valid home improvement license when it performed the work for which it now seeks compensation. CLE Assocs. opposes the motion on the ground that a valid work permit was issued for the subject project and the defendants' interests were adequately protected by their architect who oversaw all aspects of said project.

In the instant action, CLE Assocs. seeks to recover damages in the amount of $27,000, together with interest, costs and expenses, based upon "defendants' breach of their obligations under and in connection with a contract for the construction and improvement of the premises known as 135 Eastern Parkway, Apt. 14-E, Brooklyn, New York 11238."

The subject contract concerned the remodeling and renovation of various aspects of the defendants' apartment, including the kitchen, bathroom and other related projects. Defendants allege that the work performed by CLE Assocs. pursuant to the contract did not proceed properly and they ultimately retained another contractor to correct the alleged errors and complete the project. Thereafter, CLE Assocs. commenced this action to recover the alleged balance due under the contract.

Defendants contend that the action is subject to dismissal because CLE Assocs. did not possess a valid home improvement license at the time the work was done, as required by Administrative Code of the City of New York § 20-387, and has not acquired such [*2]license to date.[FN1] CLE Assocs. does not claim that it possessed such license at the time the work was done, or has since acquired same, but rather argues that because a valid work permit was issued for the subject project, and the work was overseen by the defendants' architect, the defendants were adequately protected even in the absence of the requisite license.[FN2]

Pursuant to section 20-387:

(a) No person shall solicit, canvass, sell, perform or obtain a home improvement contract as a contractor or salesperson from an owner without a license therefor.

(b) A license issued pursuant to this subchapter may not be construed to authorize the licensee to perform any particular type of work or engage in any kind of business which is reserved to qualified licensees under separate provisions of state or local law, nor shall any license or authority other than that which is issued or permitted pursuant to this subchapter authorize engaging in the home improvement business. [*3]

"Home improvement" is defined as:

[T]he construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place . . . .

(Administrative Code of the City of New York § 20-386).

In addition, "CPLR 3015(e) was devised to address a particular class of contractors, home improvement contractors" (Matter of Migdal Plumbing and Heating Corp. v Dakar Developers, Inc., 232 AD2d 62, 66 [1997], lv denied 91 NY2d 808 [1998]). Pursuant to this provision, an action against a consumer arising from a home improvement contract is subject to dismissal if the complaint fails to allege, as part of the cause of action, that plaintiff is duly licensed as required by the department of consumer affairs of the City of New York.

"It is well settled that licensing statutes are to be strictly construed, and that an unlicensed contractor forfeits the right to recover damages based either on breach of contract or quantum meruit, as well as the right to foreclose on a mechanic's lien" (Callos, Inc. v Julianelli, 300 AD2d 612, 613 [2002], lv denied 100 NY2d 502 [2003]). With respect to the home improvement contract at issue here, "strict compliance with the licensing statute is [similarly] required, with the failure to comply barring recovery regardless of whether the work performed was satisfactory, whether the failure to obtain a license was willful or, even, whether the homeowner knew of the lack of a license and planned to take advantage of its absence" (Chosen Construction Corp. v Syz, 138 AD2d 284, 286 [1988]; see also Brite-N-Up Inc. v Reno, 7 AD3d 656 [2004]; Durao Concrete, Inc. v Jonas, 287 AD2d 481 [2001]; Botsaris v JK Bono General Contractors Corp., 266 AD2d 329 [1999]; Lorenzo Marble & Tile, Inc. v Meves, 236 AD2d 448 [1997]; Bujas v Katz, 133 AD2d 730 [1987], lv dismissed 70 NY2d 1001 [1988]; Mortise v 55 Liberty Owners Corp., 102 AD2d 719 [1984], aff'd 63 NY2d 743 [1984]). Moreover, the possession of valid building permits by the contractor "does not obviate the necessity of the contractor to comply with the [licensing statute]" (Chosen Construction Corp., 138 AD2d at 286). Moreover, section 20-387 itself states that the mere possession of various licences by a contractor, in the absence of a duly issued home improvement license, will not authorize such contractor to engage in the home improvement business.

With respect to the pleading requirements established by CPLR 3015(e), a contractor who does not possess a valid license at the time the action is commenced can amend the complaint to include all pertinent information with respect to a so-called "after-acquired" license. Such amendment, however, "cannot be used to validate a contract that was prohibited when performed" (B&F Building Corp. v Liebig, 76 NY2d 689, 694 [1990]). Accordingly, this provision has been construed as applying only to [*4]those contractors who possessed a valid license at the time the time the work was performed, did not still possess same at the time the action was commenced and, thereafter, either renewed or otherwise re-obtained said license (see id.).

In the case at bar, it is undisputed that CLE Assocs. did not possess a home improvement license at the time the contract allegedly was entered into or the subject work performed, did not plead the existence of same in the summons with notice and, given the lack of such license at the time of contracting and performance, understandably has not amended said pleading to reflect an "after-acquired" license as defined by the court's holding in B&F Building Corp. It is also similarly undisputed that the contract at issue concerned "home improvements" as defined by section 20-386. Although CLE Assocs. argues that the statutory licensing scheme at issue herein was devised as a means of protecting consumers and, in this case, defendants were adequately protected by both the oversight of a licensed architect and the issuance of a valid permit by the Department of Buildings, the court notes that the subject licensing statute, § 20-387, must be strictly construed (see Callos, Inc., 300 AD2d at 612) and, by its own terms, does not provide for any alternative or arguably equivalent consumer safeguards such as those proposed by CLE Assocs. Rather, it is well settled that where a plaintiff "was not licensed pursuant to . . . § 20-387 at the time the contract was entered into and the work was performed, the contract was unenforceable [and] [t]he lack of [such] license also bars recovery of damages for breach of contract and quantum meruit" (Brite-N-Up, Inc., 7 AD3d at 657). In addition, the instant action is subject to dismissal because CLE Assocs. has failed to plead the existence of such license and the particulars of same as required by 3015(e).

Accordingly, the court is constrained to grant the defendants' motion to dismiss and plaintiff's action, therefore, is dismissed in its entirety.

The foregoing constitutes the decision, order and judgment of the court.

ENTER,

J.S.C. Footnotes

Footnote 1: Defendants also argue that the action is subject to dismissal because the contract at issue did not fully comply with General Business Law § 771. Although such provision does delineate the information required to be included within every home improvement contract, it is well settled that such contract is not rendered unenforceable by its alleged failure to include certain statutorily required terms unless the contract lacks so many essential terms that it fails to evidence the requisite "meeting of the minds" between the contracting parties (see Wowaka & Sons, Inc. v Pardell, 242 AD2d 1, 7-8 [1998]). Moreover, as the court has determined that the instant complaint is properly subject to dismissal due to CLE Assocs.' failure to comply with either the applicable licensing statute or the pleading requirements for its cause of action as established by CPLR 3015(e), the court need not reach the issue of whether or not the complaint should also be dismissed for the alleged failure of CLE Assocs. to comply with GBL § 771.

Footnote 2: CLE Assocs. also argues that the affirmation of defendants' attorney is insufficient to support the instant motion and that defendants offer no evidence that any work was actually performed at the subject premises. The court notes that an attorney's affirmation is the appropriate vehicle for introducing some of the documentary evidence, including the contract and results of license searches, submitted by defendants (see generally Lewis v Safety Disposal Sys. of Pa, Inc., 12 AD3d 324, 325 [2004]). Moreover, the court notes that a motion to dismiss is addressed to the allegations contained within the subject pleading, which are construed as true for purposes of the motion (Gruen v County of Suffolk, 187 AD2d 560, 562 [1992]), and the court is also required to draw any reasonable inferences with regard thereto (Components Direct, Inc. v European American Bank and Trust Co., 175 AD2d 227, 232 [1991]). CLE Assocs. itself has pled that it is owed money by defendants pursuant to a home improvement contract and, impliedly, the work performed thereunder. In any event, the complaint has been construed by the court, in part, as facially insufficient given CLE Assocs.' failure to plead that it possessed a valid home improvement license at the time the contract was entered into or the subject work performed (CPLR 3015[e]).