Todisco v. Econopouly

155 A.D.2d 441, 547 N.Y.S.2d 103, 1989 N.Y. App. Div. LEXIS 14000

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1989
• Status: Published

Opinions

— In an action to recover the balance due on a contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Becker, J.), dated May 25, 1988, which, inter alla, granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, without costs or disbursements.

The plaintiff sued to recover the balance due under a contract with the defendant pursuant to which he performed certain home improvements to the defendant’s residence. At the time he performed such services, the plaintiff was not licensed, in violation of Nassau County Administrative Code §21-11.2. However, the plaintiff was licensed at the time of the commencement of this action. While conceding that under case law preexisting the enactment of CPLR 3015 (e) in 1983, he would be precluded from recovering the unpaid balance on the contract (see, e.g., Richards Conditioning Corp. v Oleet, 21 NY2d 895; Millington v Rapoport, 98 AD2d 765; Segrete v Zimmerman, 67 AD2d 999), the plaintiff maintains that by enacting CPLR 3015 (e), the Legislature indicated its intention to permit retroactive licensing to validate contracts by unlicensed contractors.

We disagree and affirm the order of the Supreme Court granting the defendant’s motion for summary judgment. CPLR 3015 (e) pertains to the particularity required for specific matters contained in pleadings and complaints and permits a plaintiff who does not have a license at the commencement of the action to amend the complaint to allege the existence of an after-acquired license. Although the legislative history of CPLR 3015 (e) is silent as to the effect of the after-acquired license proviso on contractors who are not licensed at the time the work is performed, nothing suggests that the Legislature intended to overturn the well-established body of law that requires a license at the time of performance (see, Zandell v Zerbe, 139 Misc 2d 737).

The purpose behind the enactment of CPLR 3015 (e) was not to weaken substantive consumer rights, but, rather, to shift the burden from the homeowner to the contractor to establish that the contractor was licensed and to encourage such businesses to become licensed (Zandell v Zerbe, supra). Local licensing provisions, such as that contained in the Nassau County Administrative Code, provide protection of the public health and safety (see, Richards Conditioning Corp. v Oleet, 21 NY2d 895, supra; Chosen Constr. Corp. v Syz, 138 AD2d 284; Mortise v 55 Liberty Owners Corp., 102 AD2d 719, affd 63 NY2d 743; Millington v Rapoport, 98 AD2d 765, supra).

In order for a home improvement contractor to recover damages for breach of contract under a quantum meruit theory, he must possess (1) a valid license at the time of performance for which he seeks compensation, and (2) a valid license at the time of pleading (Zandell v Zerbe, supra). Since the plaintiff was unlicensed at the time the work on the defendant’s residence was performed, the Supreme Court properly granted his motion for summary judgment. Thompson, J. P., Rubin and Sullivan, JJ., concur.