Consigliere v. Grandolfo
| Decision Date | 06 January 2011 |
| Docket Number | No. SC10–196.,SC10–196. |
| Citation | 2011 N.Y. Slip Op. 50011,958 N.Y.S.2d 644,30 Misc.3d 1207 |
| Parties | Gerald CONSIGLIERE d/b/a North, Star Construction, Plaintiff, v. James GRANDOLFO, Defendant. |
| Court | New York City Court |
Plaintiff Pro Se.
Defendant Pro Se.
This is a small claims action to recover the balance claimed to be due the plaintiff contractor from the homeowner. This matter was tried before the Court on January 5, 2011.
Plaintiff is a home improvement contractor. Defendant owns the home that is the subject of the purported contract. The plaintiff sent a proposal to perform home improvement work at the price of $24,100. The defendant alleges that after the proposal was sent, the plaintiff agreed to charge only $20,000. The defendant paid plaintiff $20,000. There was no claim that the work performed was not completely satisfactory or that any work was not performed.
The work performed or to be performed under the agreement was a “home improvement.” The price of the contract exceeded five hundred dollars. The contract was thus a “home improvement contract” under General Business Law § 770(6).
No writing constituting an agreement was offered in evidence.
In 1987, the Legislature added Article 36–A to the General Business Law to regulate Home Improvement Contracts. Gen. Bus. Law § 770 et seq. The statute's plain purpose is to protect homeowners from unscrupulous, venal home improvement contractors. It protects them by, among other things, requiring a written contract containing specific language and items to be included, including granting certain rights to the homeowner. Gen. Bus. Law § 771.
Gen. Bus. Law § 771(1) says,
[e]very home improvement contract subject to the provisions of this article, and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract. The writing shall contain the following [enumerated requirements]....
The items specifically required to be included in the written contract insure that the homeowner is provided with a contract that is specific and definite in terms of who is to do the work, what is to be done, when it is to be done, how much it will cost, and what remedies are available.
The language of the statute is mandatory— every home improvement contract shall be evidenced by a writing and signed by all the parties. The proposal offered by plaintiff was not signed by the defendant or the plaintiff.
There is a large body of law barring recovery where a home improvement contractor fails to comply with consumer protection legislation. B & F Building Corp. v. Liebig, 76 N.Y.2d 689, 563 N.Y.S.2d 40 [1990];Richards Conditioning Corp. v. Oleet, 21 N.Y.2d 895, 289 N.Y.S.2d 411 [1968];Durao Concrete, Inc. v. Jonas, 287 A.D.2d 481, 731 N.Y.S.2d 203 [2nd Dept, 2001]; J.P. Maguire Associates, Inc. v. Mignone, 278 A.D.2d 201, 717 N.Y.S.2d 253 [2nd Dept, 2000]; Ashmawy v. L.I Dock & Bulkhead Corp., 251 A.D.2d 500, 674 N.Y.S.2d 711 [2nd Dept,1998]; Cappadona v. Salman, 228 A.D.2d 632, 646 N.Y.S.2d 27 [2nd Dept, 1996]; Millington v. Rapoport, 98 A.D.2d 765, 469 N.Y.S.2d 787 [2nd Dep't 1983]; Piersa v. Rosenthal, 72 A.D.2d 593, 421 N.Y.S.2d 91 [2nd Dep't 1979]; Segrete v. Zimmerman, 67 A.D.2d 999, 413 N.Y.S.2d 732 [2nd Dep't 1979]; Zimmett v. Professional Accoustics, Ltd., 103 Misc.2d 971, 432 N.Y.S.2d 243 [App Term 1st Dep't 1980]; Buffolleno v. Denning, 82 Misc.2d 472, 473, 369 N.Y.S.2d 600 [Civ Ct Queens Co.1975]. These cases virtually all hold that a home improvement contractor that fails to meet the requirements of the consumer protection laws cannot recover on a contract or in quantum meruit. See also, Marraccini v. Ryan, 71 AD3d 1100, 899 N.Y.S.2d 264 [2nd Dept, 2010](Contractor did not possess home improvement license in his own name, and thus could not recover fees from homeowners for improvements made to homeowners' home, even though a home improvement license had been issued to company operated by contractor).1
The public policy of New York is fixed by the Legislature in the statutes. F.A. Straus Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 413–14 (1930). As a statute of this State, Gen. Bus. Law § 771 sets forth the public policy of this State with respect to the requirements of home improvement contracts. As shown above, the contract plaintiff relies upon fails to meet the specific requirements of the statute since it was not signed by the parties and did not contain the required language and terms. The contract thus contravenes the public policy of the State and is therefore unenforceable.
Enforcing the alleged contract would violate the very public policy considerations giving rise to the statute's enactment. Enforcement would “emasculate the effectiveness of the legislation promulgated ... and perpetuate the evil which it seeks to eliminate.” Buffolleno v. Denning, 82 Misc.2d 472 (Civ.Ct. Queens Co.1975). Here, for the Court to enforce an alleged contract that on its face omits several terms required by law to protect the public, would render Gen. Bus. Law 771 meaningless.
ORDERED and...
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...omissions from the contract, defendants move to dismiss the action. As was sagaciously and modestly stated in Consigliere v. Grandolfo, 30 Misc.3d 1207(A), 958 N.Y.S.2d 644 [Rye City Ct. 2011], “In 1987, the Legislature added Article 36–A to the General Business Law to regulate Home Improve......
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Bread Over Bread Corp. v. Tardieu
... ... required in a home improvement contract (see GBL 771[a]-[h] ), it would be unenforceable for that reason, as well (see generally Consigliere v. Grandolfo , 30 Misc 3d 1207(A) [NY City Ct 2011] ("The statute's plain purpose is to protect homeowners from unscrupulous, venal home improvement ... ...