Opinion
2013-03611, 2013-04377
11-12-2014
Mitchell SCHIMKO, doing business as Superior Interior, respondent, v. Deron J. HALEY, et al., appellants.
Profeta & Eisenstein, New York, N.Y. (Jethro M. Eisenstein of counsel), for appellants. Peska & Associates, P.C., White Plains, N.Y. (Adam M. Peska of counsel), for respondent.
Profeta & Eisenstein, New York, N.Y. (Jethro M. Eisenstein of counsel), for appellants.
Peska & Associates, P.C., White Plains, N.Y. (Adam M. Peska of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover on an instrument for the payment of money only, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from (1) an order of the Supreme Court, Rockland County (Jamieson, J.), dated February 4, 2013, which, after a nonjury trial, directed judgment in favor of the plaintiff and against them in the principal sum of $21,106.25, and (2) a judgment of the same court dated March 25, 2013, which, upon the order, is in favor of the plaintiff and against them in the principal sum of $21,106.25.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order dated February 4, 2013, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on appeal from the intermediate order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
“In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony” (Khan v. Kaieteur Constr., Inc., 120 A.D.3d 770, 770, 991 N.Y.S.2d 349 ; see Northern Westchester Professional Park Assoc. v.
Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Novair Mech. Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 909–910, 917 N.Y.S.2d 876 ; Yonkers Contr. Co., Inc. v.
Romano Enters. of N.Y., Inc., 40 A.D.3d 629, 629, 835 N.Y.S.2d 363 ).
“Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis” (Graciano Corp. v. Baronoff, 106 A.D.3d 778, 779, 964 N.Y.S.2d 602 ; see B & F Bldg. Corp. v. Liebig, 76 N.Y.2d 689, 693, 563 N.Y.S.2d 40, 564 N.E.2d 650 ; CMC Quality Concrete III, LLC v. Indriolo, 95 A.D.3d 924, 925, 944 N.Y.S.2d 253 ; Velardo v. Tomescu, 91 A.D.3d 859, 860, 936 N.Y.S.2d 695 ). Here, contrary to the defendants' contention, the Supreme Court properly determined that the plaintiff's installation of motorized window shades in their condominium did not constitute “home improvement” work within the meaning of Administrative Code of the City of New York § 20–386(2) (see Great Am. Restoration Servs., Inc. v. Lenti, 94 A.D.3d 1053, 1054, 943 N.Y.S.2d 547 ; Precision Mirror & Glass v. Dicostanzo, 17 Misc.3d 30, 31–32, 844 N.Y.S.2d 568 [App.Term, 2d Dept.] ). Rather, the plaintiff's installation of motorized window shades constituted decorative work, which was not “incidental or related to” the separate home improvement renovations being performed by other contractors at the defendant's condominium (Administrative Code of City of N.Y. § 20–386[2] ; see Precision Mirror & Glass v. Dicostanzo, 17 Misc.3d at 31–32, 844 N.Y.S.2d 568 ; see generally Penna, Inc. v. Ruben, 72 A.D.3d 523, 523–524, 898 N.Y.S.2d 143 ; Raywood Assoc. v. Seibel, 172 A.D.2d 154, 154, 567 N.Y.S.2d 474 ). Accordingly, the plaintiff did not require a home improvement contractor's license under Administrative Code of the City of New York § 20–387(a) to perform this work.
The Supreme Court's determination that the plaintiff was not in breach of contract when the defendants prevented him from returning to their condominium to complete the installation with certain adjustments is warranted by the facts and will not be disturbed (see generally Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Kaygreen Realty Co. v. IG Second Generation Partners, L.P., 68 A.D.3d 933, 934, 893 N.Y.S.2d 76 ; cf. LaBarba v. Morrell & Co., Wine Emporium, 272 A.D.2d 165, 165, 710 N.Y.S.2d 24 ).
Accordingly, judgment was properly entered in favor of the plaintiff and against the defendants in the full amount of the remaining contract balance.