| Hakimi v Cantwell Landscaping & Design, Inc. |
| 2008 NY Slip Op 03419 [50 AD3d 848] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Farhad Hakimi, Appellant, v Cantwell Landscaping &Design, Inc., et al., Respondents. (Action No. 1.) Cantwell Landscaping & Design, Inc., et al.,Respondents, v Farhad Hakimi, Appellant. (Action No. 2.) |
—[*1] Lefkowitz, Hogan & Cassell, LLP, Jericho, N.Y. (Shaun K. Hogan and Michael D. Cassell ofcounsel), for respondents.
In two related actions which were joined for trial, inter alia, to recover damages for breach ofcontract, Farhad Hakimi, the plaintiff in action No. 1 and the defendant in action No. 2, appealsfrom so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated July 11,2007, as denied those branches of his motion which were for summary judgment dismissing thecomplaint in action No. 2 and to vacate a mechanic's lien and cancel a notice of pendency filedagainst his property.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thosebranches of the appellant's motion which were for summary judgment dismissing the complaintin action No. 2 and to vacate the mechanic's lien and cancel the notice of pendency filed againsthis property are granted, so much of the order as denied that branch of the appellant's motionwhich was for summary judgment dismissing the first counterclaim in action No. 1 is vacated,and that branch of the motion is granted; and it is further,[*2]
Ordered that the Suffolk County Clerk is directed tocancel the notice of pendency dated August 11, 2006 and to vacate the mechanic's lien filed onAugust 25, 2005 against the subject property.
Farhad Hakimi hired Cantwell Landscaping & Design, Inc., and L. Lincoln Cantwell(hereinafter collectively Cantwell) to perform landscaping work at his property where he washaving a new home constructed. It is undisputed that, at the time, Cantwell was not licensed as ahome improvement contractor pursuant to Suffolk County Administrative Code §345-17(A) and Southampton Town Code § 143-2.
Hakimi commenced an action against Cantwell seeking damages, inter alia, for breach ofcontract (hereinafter action No. 1). Cantwell counterclaimed to recover damages for breach ofcontract and to foreclose on a mechanic's lien filed against Hakimi's property. Cantwell alsocommenced its own action against Hakimi to foreclose on the same mechanic's lien and, inconjunction therewith, filed a notice of pendency against the property (hereinafter action No. 2).
Hakimi moved, inter alia, to consolidate the two actions, for summary judgment dismissingthe counterclaims asserted by Cantwell in action No. 1 and the complaint in action No. 2, and tovacate the mechanic's lien and cancel the notice of pendency. Hakimi contended that Cantwellforfeited its right to sue for breach of contract and to foreclose on the mechanic's lien since at thetime it performed the work at his property it did not possess a home improvement contractor'slicense as required by Suffolk County Administrative Code § 345-17 and SouthamptonTown Code § 143-2. Cantwell contended that the licensing exemptions in the SuffolkCounty Administrative Code and the Southampton Town Code for those engaged in theconstruction of a new home were applicable and, consequently, it was not required to be licensedwhile performing landscaping work at Hakimi's property.
The Supreme Court, inter alia, denied those branches of the motion which were for summaryjudgment dismissing the complaint in action No. 2 and to vacate the mechanic's lien and cancelthe notice of pendency. The Supreme Court concluded that the licensing exemptions for newhome construction were applicable to Cantwell's landscaping work and therefore a homeimprovement contractor's license was not required.
Pursuant to Suffolk County Administrative Code § 345-17, "[i]t is unlawful for anyperson to engage in any business as a home improvement contractor without obtaining a licensetherefor." Suffolk County Administrative Code § 345-16 defines a "home improvementcontractor" as "[a] person who engages in home improvement contracting upon residentialproperty" and further defines "home improvement contracting" as "any repair, remodeling,alteration, conversion, modernization, improvement or addition to residential property, andincludes but is not limited to . . .waterproofing, as well as other improvementsto structures or upon land which are part of residential property, including landscaping andarboriculture . . . but shall not include the construction of a new home" (emphasisadded).
Similarly, pursuant to Southampton Town Code § 143-2, "[n]o person shall conduct orengage in any home improvement business without first obtaining and maintaining in effect at alltimes a license therefor." Southampton Town Code § 143-1 (A) defines "homeimprovement" as [t]he repairing, remodeling, altering, converting or modernizing of, or addingto, residential property and shall include, but not be limited to . . .landscaping . . . and other improvements of residential [*3]property and all structures or land adjacent to it" (emphasis added).It expressly excludes from the definition of home improvement "[t]he construction of a newhome" (Southampton Town Code § 143-1 [B] [1]).
The issue on this appeal is whether Cantwell was engaged in "the construction of a newhome" by performing landscaping work on Hakimi's property, thus exempting it from thelicensing requirements of the Suffolk County Administrative Code and Southampton TownCode. The words "construction" and "home" are not defined in the codes.
When interpreting language in a statute or code, a court "should attempt to effectuate theintent of the [legislative body]" and "[b]ecause the statutory text is the clearest indicator oflegislative intent, the starting point in any case of interpretation must always be the languageitself, giving effect to the plain meaning thereof" (Matter of Jansen Ct. Homeowners Assn. v City of New York, 17 AD3d588, 589 [2005] [internal quotation marks omitted]; see Stinton v Robin's Wood, Inc., 45 AD3d 203 [2007]; Matter of Elgut v County of Suffolk, 1AD3d 512 [2003]).
Here, giving effect to the plain and common meaning of the words "construction" and"home" in Suffolk County Administrative Code § 345-16 and Southampton Town Code§ 143-1 (see Matter of Elgut vCounty of Suffolk, 1 AD3d 512 [2003]; Matter of Vernon Woods Dev. Corp. vPucillo, 134 AD2d 597 [1987]), the phrase "the construction of a new home" applies only tothe building of a new residential structure (see Blake Elec. Contr. Co. v Paschall, 222AD2d 264, 266 [1995]). Interpreting the phrase to include landscaping work performed at theproperty where a new home is being constructed would require this Court to "impermissiblyrewrite a clearly worded statute to obtain a desired result" (Matter of Briffel v County of Nassau, 31 AD3d 79, 85 [2006], affd sub nom. O'Shea v Board of Assessorsof Nassau County, 8 NY3d 249 [2007]).
Cantwell did not build a new structure on Hakimi's property. Its involvement with theproperty was limited to the installation of landscape materials and performance of landscapingservices. Under such circumstances, Cantwell was not engaged in "the construction of a newhome." Rather, it was engaged in "home improvement contracting" and "home improvement" asthose terms are defined in the Suffolk County Administrative Code and the Southampton TownCode, respectively (see Blake Elec. Contr. Co. v Paschall, 222 AD2d at 266; cf.Marciano Constr. Corp. v Stout, 12 Misc 3d 1152[A], 2006 NY Slip Op 50874[U] [2006]).Thus, it was required to possess a home improvement contractor's license. Since it did notpossess such a license, it cannot recover damages for breach of contract or foreclose on itsmechanic's lien (see Ben KrupinskiBldr. & Assoc., Inc. v Baum, 36 AD3d 843 [2007]; Callos, Inc. v Julianelli, 300AD2d 612 [2002]; Ellis v Gold, 204 AD2d 261 [1994]).
Consequently, the Supreme Court should have granted those branches of Hakimi's motionwhich were for summary judgment dismissing the complaint in action No. 2 and to vacate themechanic's lien and cancel the notice of pendency. Additionally, so much of the order as deniedthat branch of Hakimi's motion which was for summary judgment dismissing Cantwell's firstcounterclaim in action No. 1 must be vacated and that branch of the motion must be grantedsince that relief is inextricably intertwined with the portion of the order reversed on appeal(see City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516, 517 [1997]).Prudenti, P.J., Miller, Dillon and McCarthy, JJ., concur. [See 2007 NY Slip Op32483(U).]