| Penna, Inc. v Ruben |
| 2010 NY Slip Op 03155 [72 AD3d 523] |
| April 20, 2010 |
| Appellate Division, First Department |
| Penna, Inc., Doing Business as Dean Penna Corp.,Appellant-Respondent, v Lenore Ruben et al.,Respondents-Appellants. |
—[*1] Mitchell Silberberg & Knupp, LLP, New York (James E. Schwartz of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or aboutSeptember 25, 2009, which granted defendants' motion to dismiss the complaint to the extent ofdismissing it as against defendant Lenore Ruben and denied it as to the remaining defendants,unanimously modified, on the law, the motion denied as to Ruben, and the complaint reinstatedas against her, and otherwise affirmed, without costs.
Although the allegations in the complaint constitute a formal judicial admission that plaintiffengaged in construction and carpentry services for defendant Ruben, a homeowner (seeBogoni v Friedlander, 197 AD2d 281, 291-292 [1994], lv denied 84 NY2d 803[1994]), the complaint nevertheless states a cause of action against Ruben, because it cannot bedetermined on the present record whether or not the construction and carpentry work wereincidental or related to the painting that plaintiff performed (see Coggeshall Painting &Restoration Co. v Zetlin, 282 AD2d 364 [2001]), which was "not incidental or related tohome improvement work"(Administrative Code of City of NY § 20-386 [2]) and for whichplaintiff need not be a licensed home improvement contractor to recover (see RaywoodAssoc. v Seibel, 172 AD2d 154 [1991]).
To the extent plaintiff has stated a valid cause of action against Ruben for foreclosure of[*2]its mechanic's lien, the remaining defendants were properlynamed as necessary parties (see Lien Law § 44 [1]). Concur—Mazzarelli,J.P., Friedman, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ.