People v Biegler

[*1] People v Biegler 2007 NY Slip Op 52341(U) [17 Misc 3d 1139(A)] Decided on December 11, 2007 District Court Of Nassau County, First District O'Brien, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2007
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Paul Biegler A/K/A P.E.B. GROUP, Defendant(s).



17190/07



Hon. Kathleen M. Rice, District Attorney

Samuel E. Rieff, Esq.

William J. O'Brien, J.

This motion by the defendant for an order dismissing this matter upon the ground of facial insufficiency of the information is denied.

The information in this case charges the defendant with operating a home improvement business without a license in violation of Nassau County Ordinance (Administrative Code) § 21-11.4 The motion is premised upon a very specific alleged defect in the information. Defendant asserts that it is incumbent upon the People to plead and prove that the victim not only was the record owner of the property subject to the home improvement contract, but also actually did reside at the premises or intended to reside there.

In this case, the defendant alleges (and the People do not respond to the allegation) that the alleged victim did not reside at the premises and has no intention of ever residing at the premises. Instead, it is noted that the victim gives as her place of residence an address in New Jersey and the defendant alleges that the victim is a real estate investor who purchases homes without the intention to reside therein but instead with the intention of causing the homes to be refurbished and subsequently re-sold at a profit. The defendant argues that the Nassau County ordinance was intended to protect only resident homeowners or renters from the actions of unlicensed contractors and it should not be construed to provide protection to business persons or entities.

To be sure, there are quite a number of cases emanating from this court determining that the failure of one contractor to be licensed does not stand as a bar to legal action to recover the value of services from another contractor for the simple reason that contractor disputes never directly involve an owner of the premises. One of

the authorities relied upon by the defendant is illustrative of the point. In Morrison dba

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PEOPLE V. BIEGLER/PEB GROUP [*2]

Premier Drywall and Spackle v. All Side Home Improvement (6 Misc 3d 1031, 800 NYS2d 350), Judge Fairgrieve held that the Nassau County home improvement contractor licensing ordinance did not stand as a bar to recovery for the value of home improvement work performed against another contractor by an unlicensed subcontractor who had been hired by the main contractor. Clearly, it was not the intent of the Nassau County Legislature to provide protection between contractors. Rather, the expressed intent of the Legislature (§ 21-11.0) was to "...safeguard and protect the homeowner...".

In this case, the information alleges that the complainant is the owner of the premises at which it is alleged that the defendant performed unlicensed "home improvement" work. Further, the defendant raises no objection based upon the character of the premises (the ordinance applies only to a "...private residence or dwelling place for not more than three families..." (§ 21-11.1, 3.) Rather, as noted, the defendant argues that because the People have not alleged that the premises constituted the victim's actual residence or contemplated residence, the licensing ordinance should not apply in this case.

Indeed, there are a number of authorities construing the New York City counterpart of the Nassau County home improvement licensing ordinance which have determined that it is incumbent upon the People to establish that the "owner" or tenant of an apartment actually did live in the improved premises or intended to live there. (Ayres v. Dunhill Interiors, 138 AD2d 303, 526 NYS2d 440; Routier v. Waldeck, 184 Misc 2d 487, 708 NYS2d 270). However, these cases appear to rely upon an important distinction between the two ordinances. The definition of the term "owner" is substantially similar in both ordinances. In the NYC ordinance, "owner" is defined as "...any homeowner, cooperative shareholder, condominium unit owner, tenant, or any other person who orders, contracts for or purchases the home improvement services of a contractor ... pursuant to a home improvement contract" (NYC Administrative Code § 20-386 (4)). The Nassau County ordinance defines "owner" as "...any homeowner, tenant, or any other person who orders, contracts for, or purchases the home improvement services of a contractor...pursuant to a home improvement contract" (Nassau County Administrative Code § 21-11.1, 7.) The definitions are nearly identical except for the additional language in the NYC ordinance concerning cooperative shareholders and condominium unit owners. The distinction, upon which the holdings which have required proof of the victim's residency under the NYC ordinance rest, is the very different definition of the term "home improvement contract". Under the NYC ordinance, "home improvement contract" is defined as "an agreement...between a contractor and an owner, or contractor and a tenant, regardless of the number of residences or dwelling units contained in the building in which the tenant resides, provided said work is to be performed in, to or upon the residence or dwelling unit of

such tenant, for the performance of a home improvement" (NYC Administrative Code § 20-386 (6)). Under the Nassau County ordinance, "home improvement contract" is defined as "...an agreement between a contractor and an owner for the performance of

a home improvement, and includes all labor, services and materials to be furnished and [*3]

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performed thereunder." (Nassau County Administrative Code § 21-11.1, 4.).

All of the language which is contained in the NYC ordinance pertaining to the requirement that the work is to be performed in or upon the residence or dwelling unit of the tenant is not present in the Nassau County ordinance. This reason for the existence of this difference is easy to see. Clearly, within the boundaries of City of New York there are large numbers of multiple dwelling apartment buildings containing many more than four apartments. While such buildings exist also in Nassau County, they are far fewer in number. Thus, it is logical to assume that issues with respect to home improvements in the large apartment building setting are more likely to arise in New York City. The language in the NYC ordinance appears to be intended to clarify the point that a contractor, hired by the owner of a large multiple dwelling apartment building to provide, for example, a new roof for the building, need not be licensed by the city as a home improvement contractor. However, where the work to be performed is contracted by the owner or tenant of the apartment (instead of the building owner) and the work is limited to the actual apartment of the contracting owner or tenant, the licensing requirement of the NYC ordinance does apply provided that the apartment in question constitutes the "residence" of the tenant. As noted, the case law interpreting this aspect of the New York City ordinance has required some proof that the particular apartment either was or will be the actual place of residence of the contracting tenant or owner of the particular apartment.

Whether by design or otherwise, none of the language limiting the application of the home improvement licensing ordinance to situations where the owner is or will be a resident of a particular apartment or dwelling has found its way into the Nassau County ordinance. Accordingly, the court finds that under the Nassau County ordinance, due to the very broad definition of the term "owner", coupled with the lack of any restriction of the term "home improvement contract" to the actual place of residence or intended residence of a tenant or owner, there is no requirement under the Nassau County home improvement ordinance that the People plead or prove that the "owner" of the premises did actually reside at or intend to reside at the place where the home improvement was performed in order to maintain liability under the ordinance.

Therefore, the motion to dismiss for facial insufficiency must be and is hereby, denied.

SO ORDERED:

DISTRICT COURT JUDGE [*4]

Dated: December 11, 2007

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