Compensation Guidance, Inc. v. Aspro Plumbing, Inc.

Opinion

Compensation Guidance, Inc. v Aspro Plumbing, Inc.

2026 NY Slip Op 05159

September 2, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Compensation Guidance, Inc., appellant,

v

Aspro Plumbing, Inc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2024-12093, (Index No. 522426/19)

Lara J. Genovesi, J.P.

Barry E. Warhit

Laurence L. Love

Susan Quirk, JJ.

Law Office of Avram E. Frisch, LLC, New York, NY, for appellant.

Ellenoff Grossman & Schole LLP, New York, NY (Anthony Galano III, Joanna R. Cohen, and Allegra Bianchini of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard A. Montelione, J.), dated September 16, 2024. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the causes of action alleging breach of contract and unjust enrichment, and granted those branches of the defendants' cross-motion which were pursuant to CPLR 3211(a)(7) to dismiss those causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In October 2019, the plaintiff, Compensation Guidance, Inc., a consultant specializing in obtaining credits, refunds, and reduced premiums on workers' compensation policies and past audits, commenced this action against the defendants, inter alia, to recover damages for breach of contract and unjust enrichment. The plaintiff alleged that it is the successor in interest to Compensation Guidance Services, Inc., which entered into a contract with the defendants, wherein it was "to obtain refunds on workers compensation premiums" the defendants paid in exchange for the plaintiff "receiving a fixed percentage of the savings obtained" on a contingency basis. The plaintiff further alleged that it obtained "premium reductions and credits" for the defendants, however, the defendants failed to pay the demanded sums for the services rendered.

The plaintiff subsequently moved, inter alia, for summary judgment on the issue of liability on the causes of action alleging breach of contract and unjust enrichment. The defendants opposed the plaintiff's motion and cross-moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss those causes of action. In an order dated September 16, 2024, the Supreme Court, inter alia, denied those branches of the plaintiff's motion and granted those branches of the defendants' cross-motion. The plaintiff appeals. We affirm.

"'In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Fabi v Prudential Ins. Co. of Am., 241 AD3d 648, 649 [internal quotation marks omitted], quoting Curto v Curto, 235 AD3d 616, 618; see Leon v Martinez, 84 NY2d 83, 87). "'Dismissal of [*2]the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery'" (Coalition of Landlords, Homeowners, and Merchants, Inc. v Glass, 242 AD3d 1172, 1173, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142).

"'It is the settled law of this State . . . that a party to an illegal contract cannot ask a court of law to help him or her carry out his or her illegal object, nor can such a person plead or prove in any court a case in which he or she, as a basis for his or her claim, must show forth his or her illegal purpose'" (Advanced Dental of Ardsley, PLLC v Brown, 229 AD3d 589, 590 [internal quotation marks omitted], quoting Linchitz Practice Mgt., Inc. v Daat Med. Mgt., LLC, 165 AD3d 908, 910). Insurance Law § 2102 provides that "[u]nless licensed as an insurance agent, insurance broker or insurance consultant, no person, firm, association or corporation shall in this state identify or hold himself [or herself] or itself out to be an insurance advisor, insurance consultant or insurance counselor." "It is impermissible for a person, firm, association or corporation to hold itself out as an insurance consultant, receive any fee for examining policies, or make recommendations with regard to insurance in New York without being licensed as an agent, broker or consultant, even though employed by a company that is itself licensed" (Ops Gen Counsel NY Ins Dept No. 07-03-04 [Mar. 2007], 2007 WL 1119254, * 1; see Insurance Law §§ 2102, 2107).

Here, the factual allegations and inferences to be drawn from the complaint do not allow for an enforceable right of recovery (see Coalition of Landlords, Homeowners, and Merchants, Inc. v Glass, 242 AD3d at 1172), as it is undisputed that the plaintiff, Compensation Guidance, Inc., was not licensed by the State of New York at the time it allegedly provided services (see Insurance Law §§ 2102, 2107; Sulger v Danica Plumbing & Heating, LLC, 114 AD3d 929, 931; H & H Reins. Brokers v Hermitage Ins. Co., 254 AD2d 328, 330). Accordingly, the plaintiff is not legally permitted to receive any fee for examining policies (see Ops Gen Counsel NY Ins Dept No. 07-03-04 [Mar. 2007], 2007 WL 1119254; see generally Ziv v Tellkamp, 117 AD3d 727, 728) and, therefore, the alleged contract was unenforceable.

Accordingly, the Supreme Court properly granted those branches of the defendants' cross-motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging breach of contract and unjust enrichment.

The parties' remaining contentions either have been rendered academic by our determination or are without merit.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court