Opinion
No. 18956/09.
2010-08-17
ENKO CONSTRUCTION CORP., Plaintiff, v. Dimitry ARONSHTEIN, Defendant.
Vincent T. Pallaci, Esq., Kushnick & Associates, P.C., Melville, for Plaintiff, Enko Construction. Michael M. Szechter, Esq., Siler & Ingber, LLP, Mineola, for Defendant, Dimitry Aronshtein.
Vincent T. Pallaci, Esq., Kushnick & Associates, P.C., Melville, for Plaintiff, Enko Construction. Michael M. Szechter, Esq., Siler & Ingber, LLP, Mineola, for Defendant, Dimitry Aronshtein.
RANDY SUE MARBER, J.
The motion (Mot.Seq.01) submitted by the Defendant, DIMITRY ARONSHTEIN (hereinafter “ARONSHTEIN”) seeking an order, pursuant to CPLR § 3211(a)(7), dismissing the complaint of the Plaintiff, ENKO CONSTRUCTION CORPORATION (hereinafter “ENKO”) is decided as hereinafter provided. The Defendant's Order to Show Cause (Mot.Seq.02), seeking to stay discovery in this action pending the Court's determination of the motion to dismiss is also decided as hereinafter provided.
The Plaintiff commenced this action seeking monetary damages for the Defendant's breach of a construction contract, or, in the alternative, under a theory of quantum meruit seeking such damages. The Plaintiff and Defendant entered into a written agreement (hereinafter “Contract”) on or about December 15, 2008, wherein the Defendant was to perform certain construction services for the Defendant at his residence located at 3389 Poplar Street, Oceanside, New York. The Plaintiff alleges in its complaint that the Defendant failed to pay the balance due under the Contract and as a result, the Plaintiff has been damaged. The Plaintiff seeks to recover the balance it alleges is still due and owing, or in the alternative, seeks to recover the amount due under the principle of quantum meruit.
The Plaintiff attached the Contract to its complaint as an exhibit, and, as such, it is thereby incorporated by reference in the complaint. Article 2 of the Contract, entitled “SCOPE OF WORK”, states that “The Contractor agrees to renovate the above mentioned project.” See Contract, dated December 15, 2008, attached to the Defendant's Notice of Motion as Exhibit “A”. Article 4 of the Contract, entitled “THE CONTRACT PRICE” states that “The cost for renovating the project as specified in the construction documents shall be set at the sum of $334,400.00.” That paragraph further states that “The Owner and the Contractor acknowledge that the Owner will pay a sum of $50,000.00, upon signing of this contract and before renovation begins as a deposit and part of the purchase price of the project”. Id.
Paragraph “1” of the Plaintiff's complaint states, in pertinent part:
“Plaintiff ENKO CONSTRUCTION CORP. was and still is a corporation organized and existing pursuant to the laws of the State of New York, engaged in the business of construction, and maintains a place of business in the County of Queens, State of New York, and is licensed to perform residential home improvement construction.”
See Plaintiff's Complaint, dated September 10, 2009, attached to the Defendant's Affirmation in Support as Exhibit “A”.
The Defendant now moves to dismiss the Plaintiff's complaint, pursuant to CPLR § 3211(a)(7), for the Plaintiff's failure to state a cause of action based on the Plaintiff's failure to obtain a license as a home improvement contractor with the Nassau County Department of Consumer Affairs as required by CPLR § 3015(e) and the Nassau County Administrative Code. As such, the Defendant argues that the Plaintiff is barred, as a matter of law, from pursuing recovery from the Defendant based upon a breach of contract or quantum meruit cause of action.
Standard of Review
On a motion to dismiss for failure to state a cause of action, pursuant to CPLR § 3211(a)(7), the court must determine whether, from the four corners of the pleading “factual allegations are discerned, which taken together, manifest any cause of action cognizable at law”. Salvatore v. Kumar, 45 AD3d 560 (2nd Dept.2007), lv to app den.10 NY3d 703 (2008), quoting Morad v. Morad, 27 AD3d 626, 627 (2006). Further, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, and the plaintiffs accorded the benefit of every possible favorable inference. Leon v. Martinez, 84 N.Y.2d 83, 87–88 (1994). However, “[w]hile the allegations in the complaint are to be accepted as true when considering a motion to dismiss ..., allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration' “ Garber v. Board of Trustees of State Univ. of NY, 38 AD3d 833, 834 (2nd Dept.2007), quoting Maas v. Cornell Univ., 94 N.Y.2d 87, 91 (1999).
Based on the aforementioned standard, the Court will not, and need not to determine this motion, consider the additional documentary evidence submitted in support of, or in opposition to, the Defendant's motion to dismiss the complaint. The Court will only consider the Plaintiff's complaint and the Contract attached thereto, drawing every reasonable inference in favor of the Plaintiff. The Court will additionally consider the accompanying affidavits. See Leon v. Martinez, 84 N.Y.2d 83, 88 (1994) (in assessing a motion under CPLR § 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint).
Legal Analysis
It is well settled that a home improvement contractor who is unlicensed at the time of the performance of the work for which he or she seeks compensation forfeits the right to recover damages based on either breach of contract or quantum meruit. B & F Bldg. Corp. V. Liebig, 76 N.Y.2d 689 (1990); Flax v. Hommel, 40 AD3d 809 (2nd Dept.2007). CPLR § 3015(e), states, 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 Nassau County Department of Consumer Affairs, the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed 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.”
Further, the Nassau County Administrative Code § 21.11.1(3) defines a “home improvement” as:
“a repair, maintenance, replacement, remodeling, alteration ... to any land or building ... which is used as a private residence or dwelling place for not more than three families ...”.
A “contractor” as defined in the Nassau County Administrative Code § 21–11.1(2) means:
“any person who owns or operates a home improvement business or who undertakes or offers to undertake or agrees to perform any home improvement in Nassau County”.
An “owner” as defined in the Nassau County Administrative Code § 21–11.1(7):
“a homeowner, tenant, or any other person who orders, contracts for, or purchases the home improvement services of a contractor, or the person entitled to the performance of the work of a contractor pursuant to a home improvement contract”.
A “home improvement contract” in the Nassau County Administrative Code § 22–11.1(4) 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 performed thereunder”.
The Code also states that “Home Improvement” shall not include the construction of a new home building or work done by a contractor in compliance with a guarantee of completion of a new building project.
In the instant matter, it is not disputed that the Plaintiff is a contractor and the Defendant is an owner as those terms are defined in the Nassau County Administrative Code. It is also undisputed that the Plaintiff did not possess a valid home improvement license as required by the Code at the time it entered into the Contract with the Defendant, nor at any time thereafter. At issue here is whether or not the “new construction” exception is applicable to the facts of this case.
The Defendant contends in support of his motion to dismiss, that the Plaintiff contracted to perform renovation work on the Defendant's residence. The Defendant states that the Plaintiff failed to submit any written evidence to demonstrate that the Contract involved anything other than home improvement. The Defendant notes that the plain letter of the Contract uses the term “renovation” and no where in the complaint, or Contract attached thereto, does it state that the Plaintiff promised to perform construction of a new home.
The Plaintiff countered that the work it performed was not home improvement but, rather, was the construction of a new home. In support of its argument, the Plaintiff relies on two cases, City of Syracuse v. Hueber, 52 A.D.2d 341 (4th Dept.1976) and J.M. Builders & Associates, Inc. v. Linder, 67 AD3d 738 (2nd Dept.2009). City of Syracuse is of no moment here as it does not involve the requirement for a contractor to possess a home improvement license to perform construction on a residence. J.M. Builders & Associates, however, essentially mimics the facts of this case and is binding authority on this Court. In J.M. Builders, the contractor argued that it was not required to have a home improvement license because the work performed was for the construction of a new home. That case involved the Administrative Code of the City of New York, which is strikingly similar to the Nassau County Code. In finding for the home owner, the Appellate Division, Second Department, found that the statutory exemption for “construction of a new home” was limited to the creation of a structure, where none previously existed, to be used for residential purposes. “Even if a dwelling is stripped to the frame and rebuilt, the work constitutes the renovation of an existing home, not the erection of a new one”. Id. at 740. The Plaintiff's attempt to distinguish J.M. Builders from the case at bar is trivial at best. In that case, the Plaintiff states, that more of the foundation of the home remained at the time of demolition, while here, only a slab of concrete and part of the foundation remained. This minor distinction does not persuade the Court that the work performed here was for a “new construction”, thereby absolving the Plaintiff of its duty to obtain a valid home improvement license.
Moreover, it is not disputed that a home existed on the Defendant's property at the time the Contract was entered into. After execution of the Contract, and after construction on the property had commenced, the Plaintiff contends that the project was converted from a renovation to a new construction. Even assuming that to be true, it is conceded that the original contract, based on which the Plaintiff now attempts to recover, was one for renovation. Specifically, the Contract was for an addition to the second floor of the home. It is also conceded that at the time the Contract was executed, the Plaintiff did not possess a valid home improvement license. The Plaintiff's argument that the Contract was converted into a “new construction” project is not supported by the documents presented. Additionally, the four corners of Plaintiff's complaint is silent as to whether the Contract involved home improvement or new construction.
The Plaintiff also contends that the Nassau County Administrative Code only requires a home improvement license when the property is presently and actively being used as a residence or a dwelling. The Plaintiff argues that since the Defendant was not using the residence during the period of construction, the Plaintiff ENKO was not required to be licensed. If the Court adopted the Plaintiff's position, then any homeowner who moved out of their residence to allow for construction would not be considered an “owner” as defined in the Code. This Court declines to adopt this position as it is not indicative of the legislative intent. The interpretation of the statute suggested by the Plaintiff is contrary to its purpose .Contrary to the Plaintiff's contentions, the term “owner”, as defined in the Nassau County Administrative Code, was not meant to “apply to speculators and real estate investors who have no interest of residing in the subject premises.” Routier v. Waldeck, 184 Misc.2d 487, 490 (Dist. Ct. Nassau County 2000). In other words, the Code is not applicable to persons who purchase property where the sole intent is to refurbish the premises and then sell it for a profit. Such is not the case here. The Plaintiff does not dispute that the Defendant was a resident at the subject premises prior to the commencement of construction. The Plaintiff cannot seek to circumvent the strictly construed mandate of the Code requiring a valid home improvement license solely because the Defendant did not reside at the premises during the renovation.
Given these uncontroverted facts, the Plaintiff is barred, as a matter of law, from seeking recovery based on breach of contract or quantum meruit. J.M. Builders & Associates, Inc. v. Linder, 67 AD3d at 740–741. The Plaintiff has failed to state a cause of action in its complaint and, as such, the complaint must be dismissed pursuant to CPLR § 3211(a)(7).
In view of the foregoing, the motion is GRANTED and the Plaintiff's complaint is DISMISSED.
The Plaintiff's remaining contentions are without merit.
Next, with respect to the Defendant's Order to Show Cause seeking a stay of discovery pending the determination of this motion to dismiss, it appears from a review of the record that the stay must be lifted in order to proceed with the Defendant's counterclaim. To the extent that the Defendant intends to proceed with his counterclaim against the Plaintiff, in light of the Court's decision herein, discovery in this matter shall be completed as provided below.
Accordingly, it is hereby
ORDERED, that the parties shall complete all outstanding discovery with respect to the Defendant's counterclaim within 30 days of the date of this Order and that a Certification Conference in this matter shall be held on October 6, 2010 at 9:30 a.m. in Part 20 of this Court. The Certification Conference currently scheduled for September 13, 2010 is hereby adjourned in accordance with this decision.
All matters not decided herein are hereby DENIED.
This decision constitutes the decision and order of the court.