Ellis v. Gold

• Decision Date: 02 May 1994
• Citation: 611 N.Y.S.2d 587,204 A.D.2d 261
• Parties: Martin ELLIS, Respondent, v. Marilyn GOLD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 587

611 N.Y.S.2d 587

204 A.D.2d 261

Martin ELLIS, Respondent, v. Marilyn GOLD, Appellant.

Supreme Court, Appellate Division Second Department.

May 2, 1994.

John C. Jilnicki and Michael G. Walsh, Water Mill, for appellant (one brief filed).

Semon & Mondshein, Woodbury (Linda Marsha Taub, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, BALLETTA and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mechanic's lien, the defendant appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated July 11, 1991, which denied her motion for summary judgment.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, the complaint is dismissed, and the counterclaims are severed.

Local Laws, 1975, No. 1, of the Town of East Hampton requires that all home improvement contractors be licensed. This local law provides that such licenses may be revoked for various reasons, including the contractor having unjustifiably abandoned a project, having willfully deviated from the plans, or having committed fraud in solicitation or procurement of a home improvement contract.

The plaintiff, a home improvement contractor, is a shareholder in a corporation which possessed home improvement licenses issued by other government agencies. However, it is conceded that neither the plaintiff himself nor his corporation possessed an East Hampton license at the time he performed work on the defendant's home, which is located within the Town of East Hampton. He now seeks to enforce a mechanic's lien and demands a judgment in the sum of $128,690 plus interest from October 23, 1987. We conclude that the plaintiff's failure to obtain the required license precludes him from obtaining any relief, and that there is no issue of fact requiring a trial, so that summary judgment should be granted.

In Segrete v. Zimmerman, 67 A.D.2d 999, 413 N.Y.S.2d 732, this court approved of an earlier decision of the Supreme Court (Buffoleno v. Dening, 82 Misc.2d 472, 369 N.Y.S.2d 600), and held that a home improvement contractor who had not obtained the license required by virtue of a Nassau County ordinance had forfeited his right to recover damages either on a breach of contract theory or on a quantum meruit theory. The contrary holding of another prior Supreme Court case, Lindner Appraisal Corp. v. Frewil Corp., 72 Misc.2d 1041, 340 N.Y.S.2d 242, was disapproved. The holding of this court in Segrete v. Zimmerman (supra) was consistent with and arrived at in partial reliance upon a prior decision of the Court of Appeals in Richards Conditioning Corp. v. Oleet, 21 N.Y.2d 895, 896, 289 N.Y.S.2d 411, 236 N.E.2d 639, which held that public policy forbade the foreclosure of a mechanics lien held by, or the award of money damages to, a person who had, without the license required by law, installed an air conditioning system.

Since the time of Segrete v. Zimmerman (supra), this court has had several occasions to consider various questions relating to the right of an unlicensed home improvement contractor to recover damages for breach of contract, to recover damages based on a theory of quantum meruit, or to foreclose a mechanic's lien. All of these cases emanated either from Nassau County (see, Todisco v. Econopouly, 155 A.D.2d 441, 547 N.Y.S.2d 103; Bujas v. Katz, 133 A.D.2d 730, 520 N.Y.S.2d 18; Matter of Schwartz [American Swim Pools], 74 A.D.2d 638, 425 N.Y.S.2d 41; George Piersa, Inc. v. Rosenthal, 72 A.D.2d 593, 421 N.Y.S.2d 91), or from New York City (see, Hammerman v. Jamco Indus., 119 A.D.2d 544, 500 N.Y.S.2d 718; Millington v. Rapoport, 98 A.D.2d 765, 469 N.Y.S.2d 787; see also, Chosen Constr. Corp. v. SYZ, 138 A.D.2d 284, 525 N.Y.S.2d 848). In all of these cases, the court held, in relevant part, that an unlicensed home improvement contractor forfeits his right to recover damages based either on breach of contract or on quantum meruit and that an unlicensed contractor also forfeits the right to foreclose a mechanic's lien.

The Court of Appeals had several opportunities to reconsider or limit the scope of its holding in Richards Conditioning v. Oleet (supra), as that holding has been applied to unlicensed home improvement contractors, and has declined to do so. In B & F Bldg. Corp. v. Liebig, 76 N.Y.2d 689, 563 N.Y.S.2d 40, 564 N.E.2d 650, and in Mortise v. 55 Liberty Owners Corp., 63 N.Y.2d 743, 480 N.Y.S.2d 208, 469 N.E.2d 529, affd for reasons stated at 102 A.D.2d 719, 477 N.Y.S.2d 2, the Court of Appeals held that home improvement contractors who had not secured the license required by a local New York City law were not entitled to recover damages for breach of contract.

In order to avoid application of the rule of law reflected in the cases noted above, the plaintiff argues that the relevant provisions of the Town Code of the Town of East Hampton are different from the provisions of the various local laws which were under review in those cases. Specifically, he argues that the provisions of the Town Code of the Town of East Hampton requiring the licensing of home improvement contractors were not enacted with the intent to protect the public, but were instead enacted as purely revenue raising measures. This being so, the plaintiff argues that he is not precluded from enforcing his mechanic's lien (see, Rosasco Creameries, Inc. v. Cohen, 276 N.Y. 274, 11 N.E.2d 908). We disagree.

The provisions of the Town Code now under review were amended in 1987 after the plaintiff had entered into his contract, so as to declare that the local legislative body's intent was, in fact, to safeguard the public. The 1987 amendments are in pari materia with respect to the previous Code provisions and are thus useful in determining the original legislative intent (e.g., Nelson v. Hanna, 67 A.D.2d 820, 413 N.Y.S.2d 62; Rozler v. Franger, 61 A.D.2d 46, 401 N.Y.S.2d 623, affd 46 N.Y.2d 760, 413 N.Y.S.2d 654, 386 N.E.2d 262; McKinney's Cons Laws of NY, Book 1, Statutes § 223). Under these circumstances, the burden was fairly placed on the plaintiff to demonstrate that the intent of the local legislative body which originally enacted the licensing provisions was in fact different from the intent which, in 1987, the successive legislative body actually expressed. There being inadequate proof of any such difference, we conclude that the nature of the intent of the local legislative body of the Town of East Hampton has been established as a matter of law.

More fundamentally, the failure of a legislative body to express its intent in prefatory language is irrelevant when the intent of the legislative body in question can easily be inferred from the plain language of the substantive provisions of the enactment (see generally, Goodell v. Jackson, 20 Johns 693 [omission of statement of intent upon revision of statute is no evidence of intent to change meaning]; see also, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 122). It may well be that the sections of the Nassau County Administrative Code under review in cases such as Segrete (supra), as well as the sections of the New York City Administrative Code under review in cases such as B & F Bldg. Corp. v. Liebig (supra) expressly recite that, in enacting the substantive provisions set forth in those sections, the purpose of the local governing body was to safeguard and protect the public. It may also be true that the legislative body of East Hampton originally neglected to provide a similar declaration of its intent. However, the fact that the legislative body of the Town of East Hampton originally neglected to state what purpose motivated it to enact these provisions does not justify the conclusion that its purpose was any different from that which prompted the enactment of parallel provisions in Nassau County and New York City. The legislative intent is clear from the language of the enactment itself; no declaration of intent was required (e.g., Matter of E.J. Korvette, Inc. v. State Liq. Auth., 26 A.D.2d 439, 275 N.Y.S.2d 161, affd 21 N.Y.2d 766, 288 N.Y.S.2d 239, 235 N.E.2d 223; Thompson v. Wallin, 276 A.D. 463, 95 N.Y.S.2d 784, affd 301 N.Y. 476, 95 N.E.2d 806, affd sub nom. 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Matter of Westchester County Socy. for Prevention of Cruelty to Animals v. Mengel, 266 A.D. 151, 41 N.Y.S.2d 605, affd 292 N.Y. 121, 54 N.E.2d 329).

There is no valid...