| J.M. Bldrs. & Assoc., Inc. v Lindner |
| 2009 NY Slip Op 08182 [67 AD3d 738] |
| November 10, 2009 |
| Appellate Division, Second Department |
| J.M. Builders & Associates, Inc., Respondent, v James A.Lindner et al., Appellants. |
—[*1] Mark A. Billhimer, Syosset, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, (1)as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Jones,J.), dated October 31, 2007, as denied those branches of their motion pursuant to CPLR 3211 (a)which were to dismiss the fourth cause of action alleging tortious interference with the plaintiff'sbusiness and contract rights and the seventh and eighth causes of action alleging fraud, and (2)from an order of the same court dated July 3, 2008, which, after a framed-issue hearing, deniedthose branches of their motion which were pursuant to CPLR 3211 (a) to dismiss first cause ofaction alleging breach of contract, the second cause of action alleging unjust enrichment, thethird cause of action to recover on an account stated, the fifth cause of action alleging breach ofimplied warranty of fair dealing and good faith, the sixth cause of action for an award of anattorney's fee, costs, and expenses, and the ninth cause of action to compel the sale of certain realproperty, and for a preliminary and permanent injunction enjoining them from furtherencumbering the real property, and to vacate a notice of pendency and a mechanic's lien filed inconnection with the real property.
Ordered that the order dated October 31, 2007 is reversed insofar as appealed from, on thelaw, and those branches of the defendants' motion which were pursuant to CPLR [*2]3211 (a) to dismiss the fourth cause of action alleging tortiousinterference with the plaintiff's business and contract rights and the seventh and eighth causes ofaction alleging fraud are granted; and, it is further,
Ordered that the order dated July 3, 2008 is reversed, on the law, those branches of thedefendants' motion which were pursuant to CPLR 3211 (a) to dismiss the first cause of actionalleging breach of contract, the second cause of action alleging unjust enrichment, the third causeof action to recover on an account stated, the fifth cause of action alleging breach of impliedwarranty of fair dealing and good faith, the sixth cause of action for an award of an attorney'sfee, costs, and expenses, and the ninth cause of action to compel the sale of the subject realproperty, and a preliminary and permanent injunction enjoining the defendants from furtherencumbering the property, and to cancel the notice of pendency and vacate the mechanic's lienare granted; and it is further,
Ordered that the Suffolk County Clerk is directed to cancel the notice of pendency andvacate the mechanic's lien filed on March 23, 2007 against the subject real property; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
The defendants own real property (hereinafter the property) in the City of New York. Theplaintiff performed extensive renovation work on and alterations to the property pursuant to ahome improvement contract, but the defendants allegedly failed to pay the full contract price.The plaintiff filed a mechanic's lien against the property and commenced this action. Thedefendants moved pursuant to CPLR 3211 (a) to dismiss the complaint, asserting that, since theplaintiff did not obtain a home improvement contracting license to perform the renovation workon and alterations to the property, it could not enforce the home improvement contract againstthem. The plaintiff countered that the work it performed was not a home improvement but,rather, was the construction of a new home for which a home improvement contracting licensewas not necessary.
Administrative Code of the City of New York § 20-386 (2) defines "homeimprovement," inter alia, as the replacement, remodeling, alteration, conversion, rehabilitation,or renovation of any land or building, and specifically excludes the construction of a new home."The statutory exemption for 'construction of a new home' is limited to the creation of astructure, where none previously existed, that is to be used for residential purposes. Even if adwelling is stripped to the frame and rebuilt, the work constitutes the renovation of an existinghome, not the erection of a new one" (Blake Elec. Contr. Co. v Paschall, 222 AD2d 264,266 [1995]).
Similarly, this Court, in interpreting an identical provision in Southampton Town Code§ 143-1 (B) (1) and Suffolk County Administrative Code § 345-16, in which thewords "construction" and "home" are not defined, explained that, "giving effect to the plain andcommon meaning of the words 'construction' and 'home' . . . the phrase 'theconstruction of a new home,' applies only to the building of a new residential structure" (Hakimi v Cantwell Landscaping & Design,Inc., 50 AD3d 848, 850 [2008]).
It is undisputed that, when the plaintiff began its work, there was an existing home on theproperty, which was not completely demolished, since it retained the foundation, floors at grade,chimney, one entire wall, and a portion of another wall. Hence, the work undertaken by the [*3]plaintiff, although extensive, does not fall into the new-homeexception pursuant to Administrative Code of the City of New York § 20-386 (2), and theplaintiff was required to obtain a home improvement contracting license.
"An unlicensed contractor may neither enforce a home improvement contract against anowner nor seek recovery in quantum meruit" (Blake Elec. Contr. Co. v Paschall, 222AD2d at 266). Since the plaintiff did not have a home improvement contracting license, thosecauses of action alleging breach of contract or sounding in quasi-contract should have beendismissed, including the causes of action expressly alleging breach of contract (first cause ofaction), alleging unjust enrichment (second cause of action), to recover on an account stated(third cause of action), alleging breach of an implied warranty of fair dealing and good faith(fifth cause of action), for an award of an attorney's fee, costs, and expenses (sixth cause ofaction), and to compel the sale of the property and for a preliminary and permanent injunctionenjoining the defendants from further encumbering the property (ninth cause of action).
The defendants also moved pursuant to CPLR 3211 (a) (7) to dismiss the remaining cause ofaction alleging tortious interference with the plaintiff's business and contract rights (fourth causeof action) and fraud (seventh and eighth causes of action) for failure to state a cause of action.These causes of action also should have been dismissed.
In the complaint, the plaintiff alleges that the defendants interfered with its business andcontract rights by "badmouthing" it to various City agencies, other construction professionals,and prospective customers, as well as by removing a sign from the property bearing its name.The complaint failed to adequately plead that the defendants' actions were motivated solely bymalice (see M.J. & K. Co. v Matthew Bender & Co., 220 AD2d 488 [1995]), nor did itadequately plead "the existence of a valid contract between [the plaintiff] and a third party, andthat the defendant intentionally procured the third party's breach of that contract withoutjustification" (Dome Prop. Mgt., Inc. vBarbaria, 47 AD3d 870, 870 [2008]). Thus, the pleading was insufficient to state acause of action to recover damages for tortious interference with the plaintiff's business andcontract rights.
Similarly, the causes of action alleging fraudulent misrepresentation and fraud in theinducement cannot be sustained. "A cause of action alleging fraud does not lie where the onlyfraud claim relates to a breach of contract. A present intent to deceive must be alleged and amere misrepresentation of an intention to perform under the contract is insufficient to allegefraud" (WIT Holding Corp. v Klein, 282 AD2d 527, 528 [2001] [citations omitted]; see Ross v DeLorenzo, 28 AD3d631 [2006]). The complaint fails to allege that the defendants harbored a present intent todeceive the plaintiff but, rather, alleges only that the defendants misrepresented their intention toperform in the future under the contract (cf. RKB Enters. v Ernst & Young, 182 AD2d971 [1992]).
The plaintiff's remaining contentions are without merit. Santucci, J.P., Chambers, Hall andRoman, JJ., concur.
Motion by the appellants on an appeal from two orders of the Supreme Court, SuffolkCounty, dated October 31, 2007, and July 3, 2008, respectively, to strike pages RA1 throughRA3 and RA7 through RA40 of the respondent's appendix on the ground that they containmaterial dehors the record. By decision and order on motion of this Court dated January 29, 2009[2009 NY Slip Op 62336(U)], the motion was held in abeyance and referred to the panel ofJustices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition and relationthereto, and upon the argument of the appeal, it is,
Ordered that the motion is granted, and those pages of the appendix and any referencesthereto in the respondent's brief have not been considered in the determination of the appeal.Santucci, J.P., Chambers, Hall and Roman, JJ., concur.