Opinion
Index No. CV-1226-19
04-11-2022
Dwayne Rivera v. Ussama Osman, Defendant
Mark E. Constantine, Esq.
Unpublished Opinion
Mark E. Constantine, Esq.
Verris B. Shako, J.
The following papers numbered 1 to 4 were read and considered on Defendant's motion to dismiss
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Affirmation/Affidavits in Opposition 2
Replying Affidavits 3
Filed Papers 4
Defendant moved to dismiss the above-entitled proceeding on the grounds that the alleged service made upon "homeowners' manager" at 56 Page Avenue, Yonkers New York 10704 was defective. The affidavit further indicates that process was mailed to 109 Wakefield Avenue, Yonkers New York as the homeowner's last known residence. Defendant further contends he has never had any legal or factual liability to the plaintiff or any other party in the within proceedings.
Defendant further claimed that the services alleged to be rendered were home improvement services and there is neither any allegation nor any proof that plaintiff was a licensed home improvement contractor. The Westchester County Administrative Code Article XVI, §863.311 Licensing Law precludes an unlicensed contractor from recovering against a homeowner. The Legislative findings, set forth in Article XVI §863.311 provide:
"It is hereby declared and found that because of the increase in complaints by residential dwellers in the County of Westchester about abuses on the part of the home improvement contractors, it has become desirable to safeguard and protect such residents by regulating home improvement, remodeling and repair business and by licensing persons engaged in such business. Such licensing will protect and promote the health, safety and welfare of the residents of the County of Westchester."
The licensing law provides "[n]o person shall maintain, conduct operate or engage in a home improvement business within the County of Westchester...unless such person is licensed pursuant to this article." Id. Home improvement is defined as "the business of providing, for a profit, a home improvement to an owner." Code §863.312 (3). An "owner" is defined for these purposes as "a homeowner, tenant. or any other residential dweller who orders, contracts for or purchases a home improvement." Code §863.312 (7).
It follows that" [a] contractor's failure to adhere to this requirement precludes the contractor from collecting fees from a consumer and enables a consumer to move for dismissal of an action commenced by the contractor against the consumer." J.G. Cerasuolo Constr. Inc. v. Tyler, 35 A.D.3d 376, 377 (2d Dept, 2006); see, Dickson v. Bonistall, 19 A.D.3d 640 -641 (2d Dept.2005). This is so even if the homeowner is aware that the contractor is not licensed. Millington v. Rapoport, 98 A.D.2d 765 (2d Dept, 1983); see also, Fisher Mech. Corp. v. Gateway Demolition Corp., 247 A.D.2d 579, 581 (2d Dept, 1998); Hughes & Hughes Contracting Corp. v. Coughlan, 202 A.D.2d 476, 477 (2d Dept, 1994).
Plaintiff has failed to establish that he complied with the licensing law which would otherwise forfeit his right to recover damages for the alleged breach. Callos Inc. v. Julianelli, 300 A.D.2d 612, 613 (2d Dept, 2002).
Further, plaintiff failed to allege "as part of the cause of action, that plaintiff was duly licensed at the time of services rendered" and failed to include "the name and number, if any, of such license and governmental agency which issued such licensed." CPLR §3015(e).
Accordingly, defendant's motion to dismiss for a lack of personal jurisdiction, is denied pursuant to CPLR §3211(e). Defendant submitted a motion for the same relief in the form of an Order to Show Cause which was previously addressed. That branch of defendant's motion to dismiss for plaintiff's failure to a11ege or provide proof that plaintiff was a licensed home improvement contractor is granted.
The escrow deposited on November 12, 2021, by the plaintiff is directed to be returned to plaintiff as defendant has failed to demonstrate entitlement to these funds.