Opinion
2012-01-24
Mario VELARDO, et al., appellants, v. Ludwig TOMESCU, et al., respondents.
Carl F. Lodes, Carmel, N.Y., for appellants. Cuddy & Feder, LLP, White Plains, N.Y. (Brian P. Galligan of counsel), for respondents.
Carl F. Lodes, Carmel, N.Y., for appellants. Cuddy & Feder, LLP, White Plains, N.Y. (Brian P. Galligan of counsel), for respondents.
ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In an action to recover damages for breach of contract and defamation, and based on quantum meruit, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered September 27, 2010, as granted that branch of the defendants' motion which was for summary judgment dismissing the first and second causes of action set forth in the second amended complaint, which sound in breach of contract and quantum meruit, respectively.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Westchester County Administrative Code § 863.313 provides that “[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” ( see Racwell Constr., LLC v. Manfredi, 61 A.D.3d 731, 732, 878 N.Y.S.2d 369). “ ‘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’ ” ( Racwell Constr., LLC v. Manfredi, 61 A.D.3d at 732–733, 878 N.Y.S.2d 369, quoting J.G. Cerasuolo Constr., Inc. v. Tyler, 35 A.D.3d 376, 377, 826 N.Y.S.2d 631; see Dickson v. Bonistall, 19 A.D.3d 640, 640–641, 798 N.Y.S.2d 113). Where a home improvement contractor is not properly licensed in the municipality where the work is performed, the contractor cannot recover for the work performed either under the contract or on a quantum meruit basis ( see Hammerman v. Jamco Indus., 119 A.D.2d 544, 545, 500 N.Y.S.2d 718; see also Vatco Contr., Ltd. v. Kirschenbaum, 73 A.D.3d 1163, 1164, 902 N.Y.S.2d 589; Ellis v. Gold, 204 A.D.2d 261, 262, 611 N.Y.S.2d 587).
Here, the evidence tendered by the defendants in support of that branch of their motion which was for summary judgment dismissing the first and second causes of action set forth in the second amended complaint, which sound in breach of contract and quantum meruit, respectively, clearly established that they entered into a home improvement contract with the plaintiff Mario Velardo (hereinafter Mario) only, and that Mario was the only plaintiff who performed work on the subject home improvement project. Moreover, Mario acknowledged that a home improvement license had not been issued to him individually. Accordingly, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the first and second causes of action.
In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to their contention, Mario was not entitled to rely on a home improvement license that had been issued to the plaintiff Antonio Velardo, Inc. (hereinafter the Corporation), notwithstanding the fact that Mario testified at his deposition that he was a shareholder and manager of the Corporation ( see Ellis v. Gold, 204 A.D.2d at 261–262, 611 N.Y.S.2d 587; cf. Marraccini v. Ryan, 17 N.Y.3d 83, 926 N.Y.S.2d 399, 950 N.E.2d 135; Racwell Constr., LLC v. Manfredi, 61 A.D.3d at 733, 878 N.Y.S.2d 369; George Piersa, Inc. v. Rosenthal, 72 A.D.2d 593, 594, 421 N.Y.S.2d 91). As noted above, the evidence established that Mario was the only plaintiff to contract with the defendants and to perform work on the project. As such, he was required to possess a home improvement license, and his failure to adhere to this licensing requirement precluded him from collecting amounts allegedly owed by the defendants and entitled the defendants to summary judgment dismissing the first and second causes of action sounding in breach of contract and quantum meruit ( see generally Vatco Contr., Ltd. v. Kirschenbaum, 73 A.D.3d at 1164, 902 N.Y.S.2d 589; Racwell Constr., LLC v. Manfredi, 61 A.D.3d at 732–733, 878 N.Y.S.2d 369; J.G. Cerasuolo Constr., Inc. v. Tyler, 35 A.D.3d at 377, 826 N.Y.S.2d 631; Dickson v. Bonistall, 19 A.D.3d at 640–641, 798 N.Y.S.2d 113; Ellis v. Gold, 204 A.D.2d at 262, 611 N.Y.S.2d 587; Hammerman v. Jamco Indus., 119 A.D.2d at 545, 500 N.Y.S.2d 718).
The plaintiffs' remaining contentions are either improperly raised for the first time on appeal or without merit.