Opinion
No. 2012–2279 K C.
2014-06-13
Abdul R. SABIR, Appellant, v. Jacquiline NOBLE, Respondent.
Present WESTON, J.P., ALIOTTA and SOLOMON, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 7, 2012. The judgment, after a nonjury trial, dismissed the complaint and awarded defendant the principal sum of $6,000 on her counterclaim.
ORDERED that the judgment is modified by vacating the award in favor of defendant on her counterclaim and by providing that defendant's counterclaim is dismissed; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this action to recover the sum of $17,600 for breach of a construction contract, alleging that defendant had failed to pay the balance due. Defendant counterclaimed to recover the sum of $9,600 based on plaintiff's alleged defective workmanship. Following a nonjury trial, the Civil Court dismissed the complaint and awarded defendant the principal sum of $6,000 on her counterclaim.
A cause of action for breach of contract for contracting services against a consumer is subject to dismissal pursuant to CPLR 3211(a)(7) if a plaintiff does not allege compliance with local licensing requirements ( see CPLR 3015 [e]; Administrative Code of City of New York § 20–387[a]; Enko Constr. Corp. v. Aronshtein, 89 AD3d 676 [2011]; Orchid Constr. Corp. v. Tablada, 36 Misc.3d 138[A], 2012 N.Y. Slip Op 51446[U][App Term, 2d, 11th & 13th Jud Dists 2012]; C.F.C. Commercial Flooring Contrs., Inc. v. Sachs, 13 Misc.3d 143[A], 2006 N.Y. Slip Op 52307[U][App Term, 2d & 11th Jud Dists 2006] ). As plaintiff failed to allege or prove that he was licensed to perform home improvement work, we leave the dismissal of the complaint undisturbed ( see Orchid Constr. Corp. v. Gottbetter, 89 AD3d 708 [2011]; Orchid Constr. Corp. v. Gonzalez, 89 AD3d 705 [2011]; Orchid Constr. Corp. v. Tablada, 36 Misc.3d 138[A], 2012 N.Y. Slip Op 51446[U][App Term, 2d 11th & 13th Jud Dists 2012] ).
With respect to defendant's counterclaim, we note that defendant presented no bills or invoices to support her claim of damages. Consequently, her counterclaim should have been dismissed ( see O'Malley v. Campione, 70 AD3d 595 [2010] ).
Accordingly, the judgment is modified by vacating the award in favor of defendant on her counterclaim and by providing that defendant's counterclaim is dismissed.