Fisher Mechanical Corp. v. Gateway Demolition Corp.

• Decision Date: 23 February 1998
• Citation: 247 A.D.2d 579,669 N.Y.S.2d 347
• Parties: , 1998 N.Y. Slip Op. 1606 FISHER MECHANICAL CORP. d/b/a Fisher Plumbing, Respondent, v. GATEWAY DEMOLITION CORP., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 347

669 N.Y.S.2d 347

247 A.D.2d 579, 1998 N.Y. Slip Op. 1606

FISHER MECHANICAL CORP. d/b/a Fisher Plumbing, Respondent, v. GATEWAY DEMOLITION CORP., et al., Appellants.

Supreme Court, Appellate Division Second Department.

Feb. 23, 1998.

Easton & Echtman, P.C., New York City (Irwin M. Echtman, David Etkind and Bruce Hesselbach, of counsel), for appellants.

Before O'BRIEN, J.P., and SANTUCCI, JOY and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated June 3, 1996, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion is granted, and the complaint is dismissed.

The defendant Gateway Demolition Corp. (hereinafter Gateway), the general contractor on a construction project for the New York City Transit Authority, subcontracted the plumbing work on the project to the plaintiff Fisher Mechanical Corp. d/b/a/ Fisher Plumbing (hereinafter Fisher). When Gateway terminated the subcontract a few months later, Fisher commenced the instant action to recover damages for breach of contract. The defendants subsequently moved, inter alia, for summary judgment dismissing the complaint on the ground that Fisher was not licensed to perform plumbing work in New York City. The Supreme Court denied that branch of the motion which was for summary judgment, reasoning that the City's licensing requirements did not apply to this dispute between the general contractor and its subcontractor. We disagree.

It is undisputed that it is unlawful for any entity to either perform plumbing work or engage in the business of plumbing in New York City without a license (Administrative Code of City of N.Y. §§ 26-142, 26-138, 26-131). In addition to the requirement that the entity performing the work be licensed, there is also a requirement that all work be performed under the direct supervision of a licensed master plumber, and that the persons performing the work all be in the employ of the entity holding the license (see, Administrative Code of City of N.Y. § 26-142).

It has long been held that the failure to hold a plumber's license precludes recovery for plumbing work performed within New York City (see, Johnston v. Dahlgren, 166 N.Y. 354, 59 N.E. 987; see also, Schnaier & Co. v. Grigsby, 199 N.Y. 577, 93 N.E. 1125; Vitanza v. City of New York, 48 A.D.2d 41, 367 N.Y.S.2d 820, affd. 40 N.Y.2d 872, 388 N.Y.S.2d 273, 356 N.E.2d 1232), and that the licensing requirements are to be strictly enforced (see, Vitanza v. City of New York, supra). The Court of Appeals has stated that "We know of no trade, business or calling in the community which more vitally affects the public health and safety of city dwellers than that of plumbing" (People ex rel. Stepski v. Harford, 286 N.Y. 477, 485, 36 N.E.2d 670; see also, Richards Conditioning Corp. v. Oleet, 21 N.Y.2d 895, 896, 289 N.Y.S.2d 411, 236 N.E.2d 639).

In Vitanza v. City of New York, supra, at 45, 367 N.Y.S.2d 820, this court held that a "general contractor who is not a licensed plumber may not be awarded a municipal plumbing contract", and further noted that the licensing requirements were to be strictly enforced:

"The courts have been adamant in their refusal to permit recovery under a contract to do plumbing work where the contractor is not licensed. Existence of the license has been termed a condition precedent to recovery (Johnston v. Dahlgren, 166 N.Y. 354, 59 N.E. 987; Nu-Brass Plumbing & Heating v. Wiener, 29 A.D.2d 172, 286 N.Y.S.2d 922). So strict has been judicial construction of the statutory requirement through concern for the public health and welfare (see, People ex rel. Nechamcus v. Warden, 144 N.Y. 529, 39 N.E. 686), that the requirement may not be satisfied by employing or subletting the plumbing work to a licensed master plumber" (Vitanza v. City of New York, supra, at 44, 367 N.Y.S.2d 820).

Moreover, in Vitanza v. City of New York, supra, at 45, 367 N.Y.S.2d 820, this court also observed that "[t]he scheme and the pattern of the licensing statute is to prohibit one who is not licensed from performing or contracting to perform plumbing work". The latter observation is instructive here. If, as the Supreme Court determined, a subcontractor doing plumbing work need not be licensed, the entire protective net of the...