Zaromatidis v Last Detail Bldg., Inc.
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Zaromatidis v Last Detail Bldg., Inc. 2011 NY Slip Op 32592(U) September 28, 2011 Supreme Court, Nassau County Docket Number: 18667-07 Judge: Timothy S. Driscoll 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] S' SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court -------------------------------------------------------------------Jr TRiALIIAS PART:20 NICK ZAOMA TIDIS and CAREN ZAROMATIDIS, NASSAU COUNTY Plaintiffs, -against- IndeJr No: 18667Motion Seq. No: 3 Submission Date: 917/11 LAST DETAIL BUILDING, INC., Defendant. --------------------------------------------------------------------J( Papers Read on this Motion: Notice of Motion, Affirmation in Support and EJrhibits................. Part 2 of Plain tiffs Exhibits...............................""""""'"....... ... Affidavit in Opposition and Exhibits.................................................... Affirma ti 0 n in Reply.................................. ............................. II"" .... ...... Nick" ) and This matter is before the cour on the motion by Plaintiffs Nick Zaromatidis (" , 2011 and submitted on Zaromatidis (" Caren ) (collectively " Plaintiffs ), fied April 1 Caren ' motion to the September 7, 2011. For the reasons set fort below , the Cour grants Plaintiffs 000 to Plaitiffs on or before extent that the Cour directs Defendant to remit the sum of $28 2011 and fuer directs that, if Defendant fails to remit that sum to Plaintiffs on or before November 4 , 2011 , the Cour wil direct a judgment in favor of Plaintiffs and against November 4 2005. Defendant in the sum of $28 000 , plus statutory interest since October 1 BACKGROUND A. Relief Sought Plaintiffs move for an Order , pursuant to CPLR 3212, granting judgment to the Plaintiffs against the Defendant Last Detail Building, Inc. (" Last Detail") on the First Cause of Action for breach of contract and on the Second Cause of Action for breach of implied contract CP,! [* 2] and scheduling this matter for a hearing on damages. Defendant opposes Plaintiffs ' motion. B. The Paries ' History The Verified Complaint (" Complaint") (Ex. A to Fusco Aff. in Supp. ) also names Steve Kontarines (" Kontarnes ) as a defendant , and makes allegations about him. Pursuant to a stipulation dated October 17 , 2008 (id. at Ex. C), that was so-ordered by the Cour (Austin, J. counsel for the paries agreed inter alia that the claim against Kontanes personally would be withdrawn and the caption would be amended to remove Kontarnes as a defendant. Last Detail and Kontaines are referred to as the " Defendants" in the Complaint. The Complaint alleges as follows: At all relevant times , Defendants were in the general contracting business doing business withn the State of New York. On or about June 2005 , Plaintiffs contracted with Defendants for work to be performed at Plaintiffs ' residence (" Residence ) located in Franin Square , New York. Pursuant to that contractua relationship ("Contract" ), Plaintiffs deposited with Defendants the sum of $29 000. 00. The work contracted for (" Project") was to be completed on or before September 1 2005. Defendants failed to complete the Project as agreed. Plaintiffs also allege that the work performed by Defendants was " inadequate , shoddy, unsightly and below acceptable stadards (CompI. at 11). Plaintiffs allege fuer that the work performed by Defendants caused flooding at the Residence. Plaintiffs demanded a refud of " monies due for the work that was not completed and not completed to acceptable stadards (id at 13), which Defendants have refused to issue to Plaintiffs. In the first cause of action, Plaintiffs allege that Defendants ' conduct constituted a breach of the paries ' Contract , for which Plaintiffs seek incidental and consequential damages. In the second cause of action Plaintiffs allege that Defendants ' conduct constituted a breach of an Affation in Support, Plaintiffs ' counsel affmns that Plaintiffs are seekig sumar judgment as well as an Order declaring that Defendant is obligated to provide Plaintiffs with a reimbursement offuds they paid to Defendant in consideration of home improvement work they contracted with Defendant to perfonn on their 1 In her residence. 2 As discussed infra Plaintiffs testified that they provided Defendants with $28 000. [* 3] implied contract between the paries , for which Plaintiffs seek damages including loss of profit incidental and consequential damages. In her Affirmation in Support , Plaintiffs ' counsel outlines the procedural history of this matter, and provides copies of the pleadings. She also provides transcripts of 1) the Plaintiffs deposition testimony (Exs. J and K to Fusco Aff. in Supp. ) in which they testified that they made cash payments to Last Detail totaling $28 000 , 2) Kontanes ' deposition testimony in March of at Ex. L) in which he admitted that he owned a majority interest in Last Detail , and 2011 (id. was not licensed to do home improvement work in Nassau County in 2005 , and 3) deposition testimony of Emmanuel Papazoglou (" Papazoglou ) in March of2011 (id. at Ex. M) in which he admitted that he owned a minority interest in Last Detail , and was not licensed to do home improvements in Nassau County in 2005. Plaintiffs ' counsel also notes that although Defendant testified that there was a wrtten contract , deposition testimony of Kontaines they have not produced that wrting. and Papazoglou She cites in which they " improbably" (Fusco Aff. in Supp. at ~ 25) testified that the relevant documents were in a work van that was repossessed. In his Affdavit in Opposition, Kontarines submits that Plaintiffs have failed to establish the elements constituting a cause of action for breach of contract. Specifically, Plaintiffs have failed to demonstrate that Last Detail failed to perform pursuat to the Contract, and Kontanes argues that Plaintiffs do now know what Last Detail failed to do. Kontaines refers to the Plaintiffs ' depositions and submits that their testimony reflects that the Plaintiffs do not agree on the facts , and demonstrates the existence of triable issues necessitating a tral. Kontaines also contends that Plaintiffs have failed to demonstrate that they performed pursuant to the terms of the Contract, noting that their deposition testimony varies regarding the amounts of money that were tendered , and to whom that money was given. Kontanes also argues that Plaintiffs have failed to provide documentation in support of their assertion that Defendants were unicensed , and Plaintiffs lack personal knowledge regarding Defendants ' licensing status. Thus , Plaintiffs ' allegations regarding Defendants ' alleged failure to obtain a home improvement license are merely " bald conclusory statements " (Kontaines Aff. in Opp. at ~ 22). Kontarnes also affirms the trth of his deposition testimony that there was a written contact , as well as a check issued by Plaintiffs. That documentation , he claims , was in a [* 4] van that was towed and never reclaimed. In reply, Plaintiffs ' counsel affirms that Kontanes was asked at his deposition whether Last Detail was licensed to perfonn home improvement during the time of the Project and " answered in the negative. " Plaintiffs ' counsel refers to the following testimony of Kontarines in support: Q: Did Last Detail ever have a license to perform home improvement contracting work in Nassau County, do you know? A: No , I don t know. Q: Who , other than you , would be responsible for obtaing such a license? A: Many. Whch there might be a license in Suffolk , I don t know. Maybe did it , maybe he didn' t. I don t know if he got Suffolk. Q: Are you, personally, licensed to do home improvement work in Nassau County? A: I used to , be. Q: When was that? A: Years ago. Q: More than six years ago? A: Four or five. Q: Do you have any records anywhere that would indicate when you had a license to do home improvement work in Nassau County? A: Oh , Nassau County? Not Nassau County, no. Q: So you ve never been licensed to do home improvement work in Nassau County? A: No. Kontarnes Depo. at pp. 47- [* 5] The Paries ' C. Positions Plaintiffs submit that , in light of the fact that Kontarnes was not licensed to perform home improvement work, Defendants may not enforce the Contract against the Plaintiffs , or seek the reasonable value of the services rendered. Moreover, pursuant to the General Business Law every contract for home improvement involving an aggregate price of $500 or more must be in writing, and the contract must require certain payments pursuant to the Lien Law. Asthe Contract was oral , Plaintiffs are entitled to a full retu of the monies they paid to Last Detail. Last Detail opposes Plaintiffs ' motion , submitting, inter alia that 1) Plaintiffs have not established their performance under the Contract , or Last Detal' s failure to perform under the ContraCt; 2) Plaintiffs have failed to provide documentation in support of their allegation that Defendants were unicensed; and 3) there existed a written contract between the paries. RULING OF THE COURT Sumar Judgment To grant sumar Stadards ju gment, the cour must find that ther are no material , triable issues of fact, that the movant has established his cause of action or defense sufficiently to warant the cour, as a matter oflaw, directing judgment in his favor , and that the proof tendered is in Menekou admissible form. v. Crean 222 AD. 2d 418 419- 420 (2d Dept 1995). If the movant tenders sufficient admissible evidence to show that there are no material issues offact, the burden then shifts to the opponent to produce admissible proof establishing a material issue of fact. at 420. Sumar judgment is a drastic remedy that should not be granted where there is Id. Id. any doubt regarding the existence of a triable issue of fact. B. Breach of Contract To establish a cause of action for breach of contract, one must demonstrate: 1) the existence of a contract betWeen the plaintiff and defendant, 2) consideration , 3) performance by . the plaintiff, 4) breach by the defendant , and 5) damages resulting from the breach. Furia 116 AD. 2d 694 (2d Dept. 1986). 802 (2d Dept. 2010) (complaint sufcient See also JP Morgan Chase where Furia v. J.H Electric 69 AD. it adequately alleged existence of contract plaintiffs performance under contract , defendant' s breach of contract and resulting damages), citing, inter alia , Furia , supra. [* 6] C. Home Improvement Without a License Section 21- 11. 2 of the Nassau County Admnistrative Code bars home improvement contractors from operating without a license. Public policy considerations forbid enforcement quantum meruit a contract in violation of the code, or even the granting of reli f. of Matter of Schwartz 74 AD. 2d 638 638- 639 (2d Dept. 1980). As strict compliance with the licensing statute is required , recovery is bared regardless of whether the work was performed satisfactorily v. Millngton or whether the failure to obtain a license was willful. Rapoport 98 AD.2d 765 766 (2d Dept. 1983). Estoppel may not be relied upon to reward a practice which violates public policy as prescribed by the Administrative Code. D. ld. Application of these Principles to the Instat Action Plaintiffs have established a breach of contract by Defendant by demonstrating that 1) Plaintiffs entered into an agreement with Defendant to perform home improvement on their Residence for financial compensation; 2) Plaintiffs paid monies to Defendant pursuant to the paries ' agreement; and 3) Defendant breached the paries ' agreement by failng to complete the home improvement work pursuant to that agreement. In light of Kontanes ' concession that Last Detal engaged in home improvement without a license , however , Last Detail is not entitled to compensation for work performed in connection with the Project. Thus , the Cour views the paries ' agreement as void. Plaintiffs ate, therefore entitled to the retu of the $28 000 they paid in connection with the unenforceable agreement. With respect to Plaintiffs ' request for compensatory damages attibutable to the flooding alleged in the Complaint , however, there is an insufficient record in both the pleadings and the proof to support an award of those damages. Accordingly, the Cour grants Plaintiffs ' motion to the extent that the Cour directs Defendant to remit the sum of $28 000 to Plaintiffs on or before November 4 2011 and fuher directs that, if Defendant fails to remit that sum to Plaintiffs on or before November 4 , 2011 , the Cour wil direct a judgment in favor of Plaintiffs and against Defendant in the sum of $28 000 , plus statutory interest since October 1 , 2005 in light of Nick' testimony that he made his last payment to Defendants in September of2005 (Nick Depo. at p. 40). See CPLR ~ 5001. If Defendant does not make the payments to Plaintiffs as directed Plaintiffs shall submit judgment on ten (10) days notice. [* 7] All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour Counsel shall not be required to appear on September 30 2011 as previously directed. DATED: Mineola, NY September 28 2011 HON. TIMOTHY S. DRISCOLL lS. ENTEReD OCT 08 2011 NA88AU COUNTY CO CLeRK' S OFr:fCE
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