Citation Numbers: 7 Misc. 3d 383, 789 NYS2d 417
Judges: Feinman
Filed Date: 1/31/2005
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This is an action for breach of a sales and installation contract. The verified complaint alleges that in August 2001, plaintiff entered into a contract with defendant
Defendant cross-moves for summary judgment dismissal of the complaint. He alleges that the system installed by plaintiff did not work. He includes a copy of his July 21, 2003 letter to plaintiff stating that the “Crestón system” stopped functioning properly “several weeks ago,” that this was the second time the system had “broken down,” and that defendant could not use the control screen and was forced to control all the components individually (notice of cross motion, exhibit B). The letter further states that because plaintiff’s business was located in Brooklyn, at a considerable distance from his Long Island home, and plaintiff was unable to service the system “expeditiously” and charged for travel time when making repairs, defendant concluded that he no longer wanted the Crestón components in
Defendant moves for summary judgment based on the provision of the Administrative Code of the City of New York requiring a person or firm undertaking to perform home improvement be licensed as a home improvement contractor (Administrative Code §§ 20-387, 20-386), and on the equivalent provisions in the Southampton Town Code and the Laws of Suffolk County (Southampton Town Code, ch 143, art 1; Laws of Suffolk County § 345-16). Although none of these city or town codes explicitly include the installation of stereo or video equipment under their definitions of home improvements, defendant notes that the Administrative Code’s definition includes “installation of central heating or air conditioning systems, central vacuum cleaning systems, ... or communication systems” (Administrative Code § 20-386 [2]), while Suffolk County defines “home improvement” to include alarm systems (Laws of Suffolk County § 345-16), and Southampton Town Code § 143-1 states that it includes “installation of home improvement goods or the furnishing of home improvement services” as well as “any other goods which, at the time of sale or subsequently, are to be so affixed to real property by the home improvement contractor as to become part of real property, whether or not severable therefrom.”
Defendant argues that the plaintiff’s work included wiring and installation of the equipment which became affixed to the real property.
A motion for summary judgment is a drastic measure to be used sparingly (Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v “Algaze,” 84 NY2d 1019 [1995]).
It is well settled that an unlicensed contractor may not recover upon a contract or in quantum meruit where a municipality requires home improvement contractors to be licensed (Richards Conditioning Corp. v Oleet, 21 NY2d 895 [1968]). The rule is strictly enforced even when the work was satisfactorily performed or where the homeowner, knowing the contractor was unlicensed, had no intention of paying (Millington v Rapoport, 98 AD2d 765 [2d Dept 1983]). Defendant has not, however, established that plaintiff should have had a home improvement license in order to do the work at issue in this case. He does not point to any statutory language or reported decision defining the installation of stereo or video equipment as a home improvement.
Here, plaintiffs president concedes that his company, in business for more than 32 years, is not and has never been licensed as a home improvement contractor (Fishkin affidavit in opposition 1i 5). He argues that the installation of stereo and video equipment does not fall under any of the relevant definitions of home improvement and that plaintiff does not therefore need a license in order to lawfully conduct business. Plaintiff further argues that even though installation of “communications equipment” is a type of home improvement in the Administrative Code, and installation of alarm systems are home improvements under the Laws of Suffolk County, it did not install communications or alarm equipment and they are not the same as or equivalent to stereo and video systems. Furthermore, plaintiffs pres
The court has not found any case law to support defendant’s position concerning the need for a license by plaintiff,
It is ordered that the plaintiffs motion to remove this action to Suffolk County is denied as academic; and it is further ordered that the cross motion for summary judgment and dismissal of the complaint is denied.
. Neither party submits a copy of a signed agreement. Plaintiff submits an August 29, 2001 10-page proposal outlining the “house-wide Crestón system for the Hamptons residence” (Fishkin affidavit in opposition, exhibit A). Defendant includes as his exhibit A to his cross motion an earlier version of the proposal from June 19, 2001.
. Defendant’s motion is not supported by an affidavit from someone with actual knowledge of the facts, as required by CPLR 3212 (b) (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27 [1st Dept 1979], affd 49 NY2d 924 [1980]). However, defendant included a verified answer, and a “ ‘verified pleading’ may be utilized as an affidavit whenever the latter is required” (CPLR 105 [u]; Salch v Paratore, 60 NY2d 851 [1983]).
. Plaintiffs counsel includes a copy of correspondence, not in admissible form, between him and the New York City Department of Consumer Affairs in which the question was asked whether a store that sells and installs stereo and video equipment in New York City needs a home improvement license, the answer of which was “No you do not need a home improvement license.” (Plaintiffs second supplemental affidavit in opposition, exhibit A-B.)