McGlynn, Hays & Co., Inc. v McMaster

[*1] McGlynn, Hays & Co., Inc. v McMaster 2016 NY Slip Op 51269(U) Decided on September 1, 2016 Civil Court Of The City Of New York, New York County Goetz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2016
Civil Court of the City of New York, New York County

McGlynn, Hays & Co., Inc., Plaintiff,

against

Mark T. McMaster and MICHELLE MCMASTER, Defendant.



CV-004306-16/NY



Plaintiff's Counsel

Edward Weismann, Esq.

Law Office of Edward Weissman

60 East 42nd St, Ste 557

Defendants' Counsel

Charles E. Boubol, Esq.

Charles E. Boubol, P.C.

26 Broadway, 17th Floor

New York, NY 10004
Paul A. Goetz, J.

Recitation, as required by CPLR § 2219(a), the following papers were considered on the motion(s):

Papers

Numbered

Defendant's notice of motion for summary judgment and dismissal & to sever counterclaims, affidavit, affirmation, exhibits & memorandum of law 1

Plaintiff's affidavit, affirmation and exhibits in opposition 2

Defendant's reply affirmation 3

PAUL A. GOETZ, J.C.C.

Upon the foregoing cited papers, Defendant's motion for summary judgment, dismissal and to sever counterclaims is decided as follows:

The Parties' Contentions

Plaintiff McGlynn, Hays & Co., Inc. ("Plaintiff") an elevator repair, maintenance and installation company sued Defendants Mark T. McMaster and Michelle McMaster ("Defendants") for payment for work Plaintiff performed on the elevator in Defendants' residence between October, 2015 and December, 2015. Defendants interposed an answer with two counterclaims: first, for damages resulting from defective services provided by Plaintiff; and second, for statutory damages and attorneys' fees for Plaintiff's improper filing of an exaggerated [*2]mechanic's lien.

Defendants argue that Plaintiff is a home improvement contractor that must be licensed by the New York City Department of Consumer Affairs ("DCA"), pursuant to NYC Administrative Code § 20-387, and that its failure to allege in its complaint that it was duly licensed by the DCA at the time the services were rendered, is grounds for dismissal, pursuant to CPLR § 3015(e).

Plaintiff opposes Defendants' motion arguing that it performed maintenance services on Defendants' elevator under a service contract between the parties and that Plaintiff is licensed by the City of New York.

Analysis

CPLR § 3015(e) provides in pertinent part that "[w]here the plaintiff's cause of action against a consumer arises from the plaintiff's conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the City of New York . . . the complaint shall allege, as part of the cause of action, that plaintiff was duly licensed at the time of services rendered . . . The failure of the plaintiff to comply with this subdivision will permit the defendant to move for dismissal . . ."

NYC Administrative Code § 20-387 requires home improvement businesses to obtain a license from the DCA. " Home improvement' means the 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 . . ." (NYC Adm. Code § 20-386 [2] [emphasis provided]).

"[A]n unlicensed home improvement contractor cannot recover for services rendered either on the contract or in quantum meruit" (Wildenstein v 5H & Co, Inc., 97 AD3d 488, 491 [1st Dept 2012] [internal quotation marks omitted]). However, certain professions such as plumbers, electricians, architects, professional engineers, who are required by state or city law to attain standards of competency or experience as a prerequisite to engaging in such a profession are exempt from obtaining a license from the DCA. (NYC Adm. Code § 20-397 [2]; Intrepid Electrical Contracting Co., Inc. v Serure, 34 AD3d 430 [2nd Dept 2006]).

Plaintiff's president states in his affidavit in opposition that annexed thereto is a copy of Plaintiff's "most recent license issued by the City of New York." Annexed to Plaintiff's president's affidavit is, inter alia, a document entitled "License Application" dated September 30, 2015, and instructions, apparently from the New York City Department of Buildings ("DOB") website, on renewing an elevator inspection license. Plaintiff does not cite a specific provision of New York City law obligating it to obtain an elevator inspection license and other than the application for an elevator inspection license, Plaintiff does not submit proof that it in fact was granted a license by the DOB by the time it performed work on Defendants' elevator according to Plaintiff's invoice dated December 23, 2015, annexed to its opposition papers, on October 28, 30, November 3, 10, 11, and 19, 2015.

Defendants correctly point out that the complaint does not allege that Plaintiff is [*3]licensed by the DCA and they aver that according to the DCA online records, Plaintiff does not have a license issued by DCA. In addition, annexed to Defendants' moving papers is Plaintiff's December 23, 2015, invoice. The invoiced work includes: dismantling and removing damaged equipment to shop for repair/replacement, overhauling gate and repairing door operator, installing new track, securing refurbished gate and new gate switch, repositioning and securing repaired operator, rewiring components, and installing rails. This work falls well within the meaning of home improvement as that term is defined by NYC Administrative Code § 20-387 because it constitutes repair and replacement work. Consequently, Defendants have "established, prima facie, that the plaintiff seeks to recover damages for breach of a contract to perform home improvement services which required it to obtain a home improvement contractor license and that the Plaintiff did not comply with that licensing requirement" (CMC Quality Concrete III, LLC v Indriolo, 95 AD3d 924, 926 [2nd Dept 2012]).

However, by annexing to its opposition papers Plaintiff's application for a DOB elevator inspection license, Plaintiff raises a material issue of fact as to whether it is exempt from obtaining a DCA license, pursuant to NYC Administrative Code § 20-397 (See Jacobson v New York City Health and Hospitals Corp., 22 NY3d 824, 833 [2014]).

Accordingly, because there remains a material issue of fact as to whether Plaintiff is required to obtain a DCA license, pursuant to NYC Administrative Code § 20-387, or is exempt from the licensing requirements, pursuant to NYC Administrative Code § 20-397, Defendants' motion is denied.

Based on the foregoing, it is hereby ORDERED that Defendants' motion for summary judgment, dismissal and to sever is DENIED in its entirety.

This constitutes the Decision and Order of the Court.

Dated: September 1, 2016

ENTER:

Paul A. Goetz, J.C.C.