Agway, Inc. v. Williams

• Decision Date: 14 July 1992
• Citation: 585 N.Y.S.2d 643,185 A.D.2d 636
• Parties: AGWAY, INC., Respondent, v. Mitchell T. WILLIAMS and Harold A. Bock, Individually and as Partners doing business under the Name of Montash Farms, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 643

585 N.Y.S.2d 643

185 A.D.2d 636

AGWAY, INC., Respondent, v. Mitchell T. WILLIAMS and Harold A. Bock, Individually and as Partners doing business under the Name of Montash Farms, Appellants.

Supreme Court, Appellate Division Fourth Department.

July 14, 1992.

Davidson, Fink, Cook & Gates by Anthony Adams, Jr., Rochester, for appellants.

Roger G. Preston, Jr. (F. Robert Michel, of counsel), Rochester, for respondent.

Ali, Pappas, Paltz & Cox, P.C. by F. Robert Michel, Syracuse, for respondent.

Before DENMAN, P.J., and PINE, BALIO, FALLON and DOERR, JJ.

MEMORANDUM:

Defendants moved for leave to amend their answer to assert, among other things, an affirmative defense and counterclaim alleging that plaintiff had failed to comply with Education Law article 145. "Absent prejudice or surprise, leave to amend shall be freely granted (CPLR 3025[b]. Upon consideration of the motion, Special Term should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face" (Newton v. Aqua Flo Co., 106 A.D.2d 919, 920, 483 N.Y.S.2d 133; see, De Forte v. Allstate Ins. Co., 66 A.D.2d 1028, 411 N.Y.S.2d 726). Supreme Court concluded that, pursuant to Education Law § 7209(7)(b), the proposed pleading was without merit. We disagree.

Pursuant to Education Law article 145 (Education Law § 7200 et seq.), a party providing engineering services must comply with certain licensing requirements. Failure to comply with those requirements may preclude the party providing the services from recovering or retaining compensation (see, Charlebois v. Weller Assocs., 72 N.Y.2d 587, 593, 535 N.Y.S.2d 356, 531 N.E.2d 1288). Education Law § 7209(7)(b) provides that the licensing requirements do not apply "to farm buildings, including barns, sheds, poultry houses and other buildings used directly and solely for agricultural purposes". Plaintiff contracted with defendants to construct a dairy facility, including barns as well as various labor-saving devices. Defendants allege that plaintiff failed to comply with article 145 of the Education Law. That allegation is sufficient to state a cognizable defense or claim under article 145 of the Education Law (see, Education Law § 7201). Supreme Court rejected defendants' proposed affirmative defense and counterclaim on the ground that plaintiff's services fell within the exception of Education Law § 7209(7)(b). That exception, however, must be read narrowly and must be restricted only so far as its language fairly warrants (see, Matter of Radich v. Council of City of Lackawanna, 93 A.D.2d 559, 563, 462 N.Y.S.2d 928, aff'd 61 N.Y.2d 652, 472 N.Y.S.2d 82, 460 N.E.2d 223). Thus, the exception of Education Law § 7209(7)(b) may be read to refer only to the barn and not to the labor-saving devices installed therein. We note, however, that defendants cannot recover consequential damages if it is established that plaintiff failed to comply with Education Law article 145 because their remedy is limited to the contract price (see, Charlebois v. Weller Assocs., supra; see also, ...