Opinion
SC 2390/04.
Decided December 23, 2004.
Michael A. Montesano, P.C., attorney for defendant; Lloyd Gelb, plaintiff pro se.
In this small claims action, the defendant who is represented by counsel, moves for an order pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's complaint upon the grounds that the plaintiff failed to plead that he is a duly licensed home improvement contractor within the meaning of CPLR 3015(e). The plaintiff, appearing pro se, opposes the instant motion.
The plaintiff, Lloyd Gelb, commenced this action against T B Anzalone, Inc., seeking to collect $2,283.75 dollars. The plaintiff, a general contractor, was hired by a homeowner residing at 75 Knights Bridge Road, Apt. 2F, Great Neck, NY, who is not a party to this litigation, to do substantial work at her apartment. The plaintiff in turn contracted with T B Anzalone, Inc. to install a bathroom including the plumbing work. The plaintiff claims that the defendant's work was completed in an unsatisfactory manner and that the plaintiff suffered financial losses by having to re-install the work.
Initially, the Court notes that pre-trial motion practice is strongly disfavored in the small claims part of the court ( see, Fiocco v. Doerflinger, 106 Misc 2d 381, 431 NYS2d 795). The informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice under the CPLR prior to the hearing on their case ( see, Friedman v. Seward Park Housing Corp., 167 Misc 2d 57, 639 NYS2d 648). The Court, however, shall address the arguments raised by the defendant in its motion.
CPLR 3015(e) requires that in an action brought by a home improvement contractor against a consumer, the home improvement contractor must plead that he is licensed by the Nassau County Department of Consumer Affairs, or else face dismissal of his action pursuant to CPLR 3211(a)(7); failure to state a cause of action.
Therefore, the defendant asserts that this action must be dismissed because of the plaintiff's failure to plead that he was licensed by the Nassau County Department of Consumer Affairs. In opposition to the motion, the plaintiff fails to state whether or not he is a licensed contractor, but instead defends against the motion by claiming that this was not a "home improvement contract" as defined by the Code because the renovation work was performed in a multifamily building containing more than fifty (50) apartments.
Nassau County's Administrative Code requires contractors engaged in the business of home improvement to be licensed (Nassau Administrative Code 21-11.0). New York's Court of Appeals has noted that "[t]he legislative purpose in enacting the City of New York Administrative Code (which is almost identical to Nassau's Code) was . . . to benefit consumers by shifting the burden on the homeowner to the contractor to establish that the contractor was licensed" ( B F Building Corp. v. Liebig, 76 NY2d 689, 563 NYS2d 40).
Section 21-11.1(3) of the Code 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 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" (Nassau's Administrative Code 21-11.1[2]). An owner is defined as "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" (Nassau's Administrative Code 21-11.1[7]). A 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 performed thereunder" (Nassau's Administrative Code 22-11.1[4]).
As a result of this licensing requirement, lawsuits instituted by unlicensed home improvement contractors to recover for monies owed pursuant to home improvement contracts are routinely dismissed pursuant to CPLR 3211(a)(7) and 3015(e) ( see B F Building Corp. v. Liebig, 76 NY2d 689, supra; AEC Bldg. Assoc. v. Crystal, 246 AD2d 496, 667 NYS2d 399; Botsaris v. JK Bono General Contr. Corp., 266 AD2d 329, 698 NYS2d 327). "The rationale for the dismissals is that an unlicensed home improvement contractor is found to have forfeited his right to recover damages either on a breach of contract theory or on a quantum meruit theory" ( Ellis v. Gold, 204 AD2d 261, 611 NYS2d 587). In addition, since the unlicensed contractor loses the right to sue under the contract, the unlicensed contractor also loses the right to foreclose a mechanics lien ( Id.).
There are, however, limits to the types of actions subject to dismissal, and the courts narrowly construe consumers to mean only those persons specifically intended to be protected by the licensing law's terms.
The legislative purpose behind Nassau's Administrative Code is set forth as follows:
"It is the purpose of the Board of Supervisors in enacting this local law to safeguard and protect the homeowner against abuses on the part of the home improvement contractors by regulating the home improvement, remodeling and repair business and by licensing persons engaged in such business" (Nassau Administrative Code 21-11.0).
As a result of this purpose, Courts have denied motions to dismiss where the consumers involved do not fall within the intended class of persons sought to be protected.
An analogous case to the within matter is Corcoran Marble Co. Inc. v. Clark Construction Corp., 153 Misc 2d 49, 597 NYS2d 259 [App Term 1st Dept 1993]). There, the defendant, Clark Construction Co., was hired by a homeowner named Heller's, who was not a party to the litigation, to do substantial renovation work at Heller's residential apartment. The defendant, in turn contracted with Corcoran Marble Co. to install marble floors and walls. When the defendant failed to pay Corcoran Marble, Corcoran Marble brought suit. The defendant moved to dismiss the plaintiff's complaint pursuant to CPLR 3211(a)(7) failure to state a cause of action, based upon plaintiff's failure to plead pursuant to CPLR 3015(e), that he had a home improvement license within the New York City Administrative Code. The lower court granted the defendant's motion to dismiss the complaint and the plaintiff appealed. The Appellate Term, First Department reversed the lower court and held that the defendant was not a member of the class of individuals that was intended to be protected by the Code, namely "owners". Noting the arguably broad statutory definition of that term, the Court explained: "The use of the phrase 'any other person' in Section 20-386(4) follows words of specific import, namely 'homeowner, condominium unit owner, tenant', making application of the rule of ejusdem generis appropriate. This rule of statutory construction requires the court to limit general language of a statute or ordinance by specific phrases which precede it (McKinney's Cons. Laws of NY, Book 1, Statutes, § 239, at 407-411). As the specific words appearing in subdivision 4 refer to persons who possess a proprietary or rental interest in the affected residential premises, it is proper to so limit its meaning and exclude from the protective scope of the ordinance an entity such as the defendant which itself was hired as a contractor to perform a home improvement".
The Court in Corcoran then went on to state:
"It is clear from the definitional language employed that the person seeking to invoke the license requirements of the ordinance must actually reside in the dwelling unit in which the work is to be performed ( see, Ayres v. Dunhill Interiors, Ltd., 138 AD2d 303, 526 NYS2d 440), and that an agreement between two (non-resident) contractors is not among the species of contracts whose enforcement the ordinance is designed to proscribe" ( Corcoran Marble Co. Inc. v. Clark Construction Corp., 153 Misc 2d 49, supra).
Similarly, the Court in Routier v. Waldeck, 184 Misc 2d 487, 708 NYS2d 270 [Nassau Dist Ct 2000], in deciding a dispute between an unlicensed contractor who performed extensive renovations for a prospective purchaser of a home held that the home improvement statute was enacted to safeguard and protect consumers against fraudulent practices and inferior work by those who would hold themselves out as home improvement contractors ( citing to B F Building Corp. v. Liebis, 76 NY2d 689, 563 NYS2d 40). "It was clearly not intended to extend such protection to 'all other persons' as a literal but out of context reading of the statute might imply" ( Routier v. Waldeck, supra, 184 Misc 2d at 487).
The Court further stated:
"recognizing then that there are limitations on the spectrum of individuals who may avail themselves of the shield that this statute provides yet mindful that this paternalistic statute may also be used as a sword against unlicensed but otherwise competent contractors, this Court draws the following bright lines so that all may know to whom this statute applies. The term 'owners' as defined in this statute applies to individuals who reside in the subject premises and those who intend to reside in the subject premises after the home improvements are completed. It does not apply to speculators and real estate investors who have no intention of residing in the subject premises. These latter classes of individuals are business people who have other remedies available to them and who may not rely on consumer type statutes for protection" ( Id.).
In view of the foregoing, the Court finds that the defendant, T S Anzalone, cannot avail itself the protections of the Nassau County Administrative Code, as clearly this contractor is not an intended beneficiary within the meaning of the statute.
Accordingly, the defendant's motion is denied.
So Ordered: