Vatco Contracting, Ltd. v. Kirschenbaum
| Decision Date | 25 May 2010 |
| Citation | 73 A.D.3d 1163,902 N.Y.S.2d 589 |
| Parties | VATCO CONTRACTING, LTD., respondent, v. Sanford KIRSCHENBAUM, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
73 A.D.3d 1163
VATCO CONTRACTING, LTD., respondent,
v.
Sanford KIRSCHENBAUM, et al., appellants.
Supreme Court, Appellate Division, Second Department, New York.
May 25, 2010.
William R. Garbarino, Sayville, N.Y. (Donald R. Hamill of counsel), for appellants.
Leslie Martin Shamis, Long Beach, N.Y., for respondent.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, and LEONARD B. AUSTIN, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (Driscoll, J.), dated September 15, 2009, which denied their motion for summary judgment dismissing the complaint and, sua sponte, granted the plaintiff leave to serve an amended complaint.
ORDERED that the notice of appeal from so much of the order as, sua sponte, granted the plaintiff leave to serve an amended complaint is treated as an application for leave to appeal from that part of the order, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,
ORDERED that the order is affirmed, with costs.
The plaintiff contractor commenced the instant action seeking, inter alia, to recover damages for breach of a construction and restoration contract. The defendant homeowners moved for summary judgment dismissing the complaint on the ground that the plaintiff did not possess a "home improvement contractor's license" issued by the City of Long Beach. In opposition, the plaintiff contended that it was indeed properly licensed, submitting proof of a general contractor's license issued by the City of Long Beach and a "home improvement contractor's" license issued by the Nassau County Office of
Licensing statutes concerning home improvement unequivocally place the burden on the contractor to ensure that licensing statutes are strictly complied with ( see Ellis v. Gold, 204 A.D.2d 261, 611 N.Y.S.2d 587; George Piersa, Inc. v. Rosenthal, 72 A.D.2d 593, 421 N.Y.S.2d 91). A "contractor who is unlicensed in the municipality where the work is performed is barred from recovery in contract or under the theories of recovery of quantum meruit and unjust enrichment" ( Price v. Close, 302 A.D.2d 374, 375, 754 N.Y.S.2d 660; see J.P. Maguire Assoc., v. Mignone, 278 A.D.2d 201, 717 N.Y.S.2d 253; Matter of Scaturro v. M.C.S. Landscape, 212 A.D.2d 798, 622 N.Y.S.2d 975; Ellis...
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