Buck Constr. & Dev., Inc. v. Hetzel

• Decision Date: 17 October 2018
• Docket Number: Index No. 602186/16,2017–02077
• Citation: Buck Constr. & Dev., Inc. v. Hetzel, 165 A.D.3d 875, 85 N.Y.S.3d 194 (N.Y. App. Div. 2018)
• Parties: BUCK CONSTRUCTION & DEVELOPMENT, INC., respondent, v. Elaine M. HETZEL, etc., appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 875

85 N.Y.S.3d 194

BUCK CONSTRUCTION & DEVELOPMENT, INC., respondent,

v.Elaine M. HETZEL, etc., appellant.

2017–02077

Index No. 602186/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted - May 17, 2018

October 17, 2018

Russo & Toner, LLP, New York, N.Y. (Josh H. Kardisch of counsel), for appellant.

Brian P. Neary, P.C., Huntington, NY, for respondent.

JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated February 3, 2017. The order denied the defendant's motion for summary judgment dismissing the complaint and in her favor on her counterclaims.

ORDERED that the order is affirmed, with costs.

The plaintiff, a construction company, and the defendant, a property owner, entered into a construction contract for the plaintiff to build a home for the defendant in Belle Harbor, Queens, after the defendant's home had been destroyed by a fire. The defendant hired Andre Boucher, an adjuster from Florida, to handle the insurance claim process and to assist as a "liason" on the construction project. The defendant also hired James Leonard, an architect, to design a storm-resistant home. The plaintiff was contacted by Boucher to perform the construction work and it was Boucher who presented the construction contract to his client, the defendant. In an affidavit submitted in support of her motion for summary judgment, the defendant stated that she believed that the total cost of the project would be $496,000. However, the contract provided that the total cost was $696,000. The defendant admitted that she signed the contract without reading it. Due to alleged deviations from the architectural plans, poor workmanship, and delays, the defendant fired the plaintiff from the project. Thereafter, the plaintiff commenced this action, inter alia, to recover damages for breach of contract. The defendant counterclaimed to recover damages for, among other things, breach of contract.

The defendant moved for summary judgment dismissing the complaint and in her favor on her counterclaims, asserting that the plaintiff could not succeed on the complaint because it could not demonstrate there was a meeting of the minds, it did not substantially perform its duties under the contract, and it is not a licensed home improvement contractor, thereby making the contract illegal and unenforceable. The plaintiff opposed the motion, stating that it was not required to be a licensed home improvement contractor for this contract because the project was a new construction on a vacant lot, not a home improvement. The plaintiff asserted that it was acting as a subcontractor for the licensed general contractor, nonparty Celtic Construction. The plaintiff also asserted that it performed the work properly pursuant to the contract and architectural plans, but that delays were caused by the defendant's architect. The Supreme Court denied the defendant's motion, holding that there were issues of fact, including whether the plaintiff had to be licensed to perform the work and whether the defendant...