Pond Constr. Corp. v. Italine, Inc., CV-4983-20/HU

CourtNew York District Court
Writing for the CourtC. Stephen Hackeling, J.
Citation70 Misc.3d 1220 (A),140 N.Y.S.3d 397 (Table)
Parties POND CONSTRUCTION CORP., Plaintiff v. ITALINE, INC., Ian Chaikin and Cesar Chaikin, Defendant.
Decision Date04 March 2021
Docket NumberCV-4983-20/HU

70 Misc.3d 1220 (A)
140 N.Y.S.3d 397 (Table)

POND CONSTRUCTION CORP., Plaintiff
v.
ITALINE, INC., Ian Chaikin and Cesar Chaikin, Defendant.

CV-4983-20/HU

District Court, City of New York, New York, Suffolk County, Third District.

Decided on March 4, 2021


Lee J. Mondshein, Attorney for Plaintiff, 445 Broad Hollow Road, Suite 419, Melville, New York 11747

Chaikin, PLLC, Attorney for Defendant, 1 Penn Plaza, Suite 5310, New York, N.Y. 10019

C. Stephen Hackeling, J.

Upon the following papers numbered 1-14 Read on this motion by defendant

Notice of Motion and supporting papers1-8

Notice of Cross Motion and supporting papers

Answering Affidavits and supporting papers

Affidavit in Opposition and supporting papers 9-14

Replying Affidavits and supporting paper N/A

Filed papers ________

Other paper

it is,

Relief Requested

The defendants Ian Chaikin, Cesar Chaikin and Italine, Inc., have made application for an order pursuant to CPLR § 3211, dismissing the plaintiff's complaint. The plaintiff submits opposition thereto. Said application is granted.

Background

The plaintiff commenced this action sounding in breach of contract, unjust enrichment, and fraud, stemming from work allegedly performed on the defendants' property at 91 Yukon Drive, Woodbury, New York, in August 2018.

Prior to the commencement of this Suffolk County District Court action, the defendant Italine, Inc. (as plaintiff) commenced a Suffolk County Supreme Court action dated September 23, 2018 against A-H Construction, LLC (hereafter "A-H") and Pond Construction Corp. (hereafter "Pond") sounding in breach of contract. Paragraph #13 of said complaint avers that Ian Chaikin and Italine, Inc. undertook the construction of a "newly built residence". Thereafter, A-H Construction (as plaintiff) commenced a Nassau County action dated October 29, 2018 against defendants Ian and Cesar Chaikin and Italine, Inc. seeking to foreclose upon a mechanic's lien it had filed against the subject property as well as seeking a money judgment for breach of contract.

On November 19, 2018, Italine Inc. and the Chaikins made an application to the Nassau County Supreme Court to vacate the A-H mechanics lien and dismiss its complaint. Paragraphs #6 and #7 of Ian Chaikin's affidavit in support states the verbage "as part of the construction of a new dwelling". Pursuant to order and decision dated February 8, 2019, the Nassau County Supreme Court dismissed A-H's complaint as to its cause of action for breach of contract and denied the Italine/Chaikin application to vacate the A-H's mechanic's lien.

Pursuant to application dated March 5, 2019, Italine/Chaikins requested reargument of the Supreme Court February 8, 2019 decision. Reargument was granted. In the reargument papers, Italine/Chaikins, for the first time, raised the issue that the A-H complaint should be dismissed as A-H did not have a Nassau County Home Improvement license. A-H via the affirmation of its counsel dated April 10, 2019, asserted in paragraphs # 23 and #25 that it did not need a Nassau County Home Improvement license as the subject project involved construction of a "new residence" and was therefore expressly exempt from the law's requirements.

On July 1, 2019 the Nassau County Supreme Court entered a short form decision and order vacating the A-H's mechanic's lien and dismissing its complaint. The reason for the dismissal was opined as follows:

It is well settled that a contractor who is unlicensed in the
...

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