Opinion
2022-969 N C
12-21-2023
Javid ZARABI, Appellant, v. AMERICAN PAVING AND MASONRY CORP., Angelo Stanco, and American Paving, Inc., Respondents.
ORDERED that the amended judgment, insofar as appealed from, is modified by vacating so much thereof as dismissed the action against defendants Angelo Stanco and American Paving, Inc., and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $4,500 against those defendants; as so modified, the amended judgment, insofar as appealed from, is affirmed, without costs.
In this small claims action, plaintiff seeks to recover the principal sum of $4,500. At a nonjury trial, plaintiff testified that he is a general contractor and had paid defendant Angelo Stanco $4,500 in cash, pursuant to a $9,000 written subcontract with defendant American Paving, Inc. to construct a driveway. On the first day of work, workers employed by one or more of the defendants arrived in a truck but found the driveway blocked by a car. The workers left after 10 or 15 minutes and never returned, even though defendants’ representative had promised that the workers would return the next day. Plaintiff further testified that defendant Stanco had subsequently agreed, but failed, to return the $4,500. Defendants, who were represented by an attorney, failed to produce any witnesses or to substantiate any defense. Plaintiff appeals from so much of a judgment of the District Court as dismissed plaintiff's cause of action upon a finding that plaintiff had failed to prove that he was licensed.
In a small claims action, our review is limited to a determination of whether "substantial justice has ... been done between the parties according to the rules and principles of substantive law" ( UDCA 1807 ; see UDCA 1804 ; Ross v Friedman , 269 AD2d 584 [2000] ; Williams v Roper , 269 AD2d 125 [2000] ). The purpose of the licensure provisions of the Nassau County Administrative Code that pertain to home improvement contractors is "to safeguard and protect the homeowner against abuses on the part of home improvement contractors by regulating the home improvement, remodeling and repair business and by licensing of persons engaged in such business" (Nassau County Administrative Code § 21—11.0). Here, plaintiff does not seek a recovery for services he rendered, and we conclude that the District Court's invocation of the licensure provisions of the Nassau County Administrative Code, to preclude plaintiff from obtaining a refund of monies he paid for services that were never rendered, failed to render substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807 ; see also Morrison v Tooma , 6 Misc 3d 1031[A], 2005 NY Slip Op 50261[U] [Nassau Dist Ct 2005] ; cf. Jack A. Corcoran Marble Co. v Clark Constr. Corp. , 155 Misc 2d 49 [App Term, 1st Dept 1993] ).
Under the particular circumstances of this case, rather than remitting the matter to the District Court, we make our own determination. The evidence was unrefuted that plaintiff paid defendants Stanco and American Paving, Inc. $4,500 and that they failed to perform any work for that sum. We note that defendants failed to establish the capacity in which Stanco received money from plaintiff or any defense of agency. The dismissal of the action against defendants Stanco and American Paving, Inc. thus failed to render substantial justice between the parties (see UDCA 1804, 1807 ). Since, however, there was no evidence that defendant American Paving and Masonry Corp. entered into a contract with, or received money from, plaintiff, the dismissal of the action against that defendant rendered substantial justice between the parties.
We do not consider those arguments raised by plaintiff for the first time on appeal (see Elbayoumi v TD Bank, N.A. , 185 AD3d 786, 788 [2020] ), or any materials which are dehors the record (see Chimarios v Duhl , 152 AD2d 508 [1989] ).
Accordingly, the amended judgment, insofar as appealed from, is modified by vacating so much thereof as dismissed the action against defendants Angelo Stanco and American Paving, Inc., and the matter is remitted to the District Court for the entry of a judgment in favor of plaintiff in the principal sum of $4,500 against those defendants.
GARGUILO, P.J., EMERSON and WALSH, JJ., concur.