Trinchese Constr., Inc. v Surujdeen

[*1] Trinchese Constr., Inc. v Surujdeen 2020 NY Slip Op 51100(U) Decided on September 29, 2020 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2020
Civil Court of the City of New York, New York County

Trinchese Construction, Inc., Plaintiff

against

Ramnarine Surujdeen and JASMATIE SURUJDEEN, Defendants.



CV-33584-19



DAVID J. GOLD, ESQ.
Attorney for Plaintiff
800 Second Avenue, Suite 810
New York, New York 10017
212.962.2910

GREENBLATT & AGULNICK, P.C.
Attorneys for Defendants
By: Scott E. Agulnick, Esq.
55 Northern Boulevard, Suite 302
Great Neck, New York 11021
718.352.4800
Sabrina B. Kraus, J.

BACKGROUND

Plaintiff commenced this action pursuant to a summons and complaint filed on December 10, 2019, seeking $23,029.69 in damages, based on breach of contract and account stated. Proof of service was filed on January 28, 2020.

On February 3, 2020, defendants appeared by counsel and filed a demand for a change of venue pursuant to CPLR § 511(b).

THE PENDING MOTIONS

On March 31, 2020, defendants moved for an order dismissing the action based on an alleged failure to state a cause of action and improper venue. Plaintiff cross-moved for leave to amend the complaint.

On September 28, 2020, the motions were fully briefed, the court marked them submitted [*2]and reserved decision.[FN1]

The motions are consolidated herein for disposition.

DISCUSSION

Defendants' Motion to Dismiss Based on Failure to State a Cause of Action Is Denied and Plaintiff's Cross-Motion for Permission to Amend its Complaint Is Granted

Defendants move to dismiss pursuant to CPLR § 3211(a)(7), because plaintiff failed to plead that it was a licensed home improvement contractor as required by CPLR § 3015(e).

CPLR § 3015 imposes special pleading requirements on businesses required to be licensed by the Department of Consumer Affairs, and subdivision (e) provides in pertinent part:

Where 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 and shall contain the name and number, if any, of such license and the governmental agency which issued such license. The failure of the plaintiff to comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter. NY C.P.L.R. 3015 (McKinney). The commentators have noted that

"(o)n the face of the statute, the omission to plead the license would appear to be curable. That would at least mean that if the plaintiff had in fact obtained the license prior to performing the work, but just omitted to plead it, an amendment of the complaint to include the allegation is permissible [NY C.P.L.R. 3015 (McKinney) (Practice Commentaries, Connors, C3015:6]."

CPLR § 3025(b) provides that "

... (a) party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading [NY C.P.L.R. 3025 (McKinney)]."

It is well established that leave to amend a pleading shall be freely granted absent prejudice or surprise resulting from the delay (Crimmins Contr. Co. v. City of New York, 74 NY2d 166). However, leave to amend will be denied where the proposed pleading fails to state a cause of action [ Davis & Davis, P.C. v. Morson, 286 AD2d 584, 585 (2001)].

In this case, the proposed amended pleading still fails to comply with the requirements of CPLR § 3015(e), in that the proposed amended complaint does not clearly state that plaintiff was duly licenced at the time of the services rendered and fails to include the license number.

Instead, the proposed amended complaint alleges "Trinchese Construction Inc, was and still is duly licensed by the New York City Department of Consumer Affairs to perform the construction work set forth hereinafter." Annexed as exhibit 1 to the cross-motion are two copies of a license, which show the relevant dates and a license number, but this is an exhibit to the motion, not the complaint.

CPLR §3015(e) is intended to protect consumers against unlicensed contractors. The legislature intended to benefit consumers, by shifting the burden from the homeowner to the contractor, to establish that the contractor was licensed. The affirmative pleading requirement is also intended to increase incentives for businesses to comply with licensing requirements and help to raise revenue [B & F Bldg. Corp. v. Liebig, 76 NY2d 689, 693 (1990)].In this case, there is no dispute that plaintiff was and is licensed during all relevant periods. The failure to include the license number in the proposed amended pleading is merely a drafting error by counsel, and should not impact the substantive rights and remedies of the parties herein.

Based on the foregoing, the proposed amended complaint is rejected by the court as it still fails to comply with statutory requirements, but the cross-motion for leave to serve an amended complaint is granted to the extent that plaintiff has leave to serve and file an amended complaint that complies with the pleading requirements of CPLR 3015 within 30 days of the date of entry of this order.

Defendants' motion to dismiss based on failure to state a cause of action is denied, without prejudice to renewal, in the event that plaintiff fails to serve a proper amended complaint as directed above. Defendants' request to serve the amended pleading by email is denied, unless plaintiff's counsel stipulates to service by email, service shall be as required by the CPLR.

Defendants' Motion to Dismiss Pursuant to CPLR § 511 Is Denied

Defendant moves for dismissal of the action arguing that the allegations in the complaint as pertain to venue are incorrect and misleading.

CPLR § 511 provides in pertinent part:

(a) Time for motion or demand. A demand under subdivision (b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. A motion for change of place of trial on any other ground shall be made within a reasonable time after commencement of the action.(b) Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper. NY C.P.L.R. 511 (McKinney).

At the outset the court notes that there is no provision in CPLR §511 for dismissal based on an improper venue. "Improper venue is not a jurisdictional defect requiring dismissal of the action [Lowenbraun v. McKeon, 98 AD3d 655, 656 (2012)]."

Defendants did serve a demand in accordance with CPLR § 511(b), however the remedy is to move for a change of venue, not dismissal.

As such there is no basis to dismiss this action for improper venue and the motion to dismiss on this basis is denied.

This constitutes the decision and order of the Court.

Dated: September 29, 2020

New York, New York
Sabrina B. Kraus, JCC Footnotes

Footnote 1:The parties had stipulated to a submission date of October 12, 2020,but as the motions were fully briefed by September 28, 2020, the court is accelerating the submission date.