| Orchid Constr. Corp. v Gonzalez |
| 2011 NY Slip Op 07823 [89 AD3d 705] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Orchid Construction Corp., Appellant, v GuillermoGonzalez et al., Respondents. |
—[*1] Curtis, Mallet-Prevost, Colt & Mosle, LLP, New York, N.Y. (Turner P. Smith and AndrewB. Zinman of counsel), for respondents Guillermo Gonzalez and Claudia Gonzalez. Timothy P. Kebbe, White Plains, N.Y., for respondent John Malabre.
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffappeals from an order of the Supreme Court, Queens County (Kitzes, J.), entered July 19, 2010,which granted those branches of the defendants' separate motions which were pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs payable to the defendants appearingseparately and filing separate briefs.
The plaintiff is a contractor who performed renovation work at the apartment of thedefendants Guillermo Gonzalez and Claudia Gonzalez (hereinafter together the Gonzalezes) inthe City of New York pursuant to a home improvement contract. The defendant John Malabre, aproject manager for a construction project at the apartment building, allegedly negotiated theterms of the agreement and directed the plaintiff's work. The plaintiff commenced this actionagainst the Gonzalezes and Malabre, alleging, among other things, that the Gonzalezes breachedthe contract by failing to compensate it for its work, and that Malabre fraudulently induced it toenter into the contract with the Gonzalezes. Malabre and the Gonzalezes separately moved, interalia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against each ofthem. The Gonzalezes contended that the plaintiff was an unlicensed home improvementcontractor, and thus, the complaint failed to state a cause of action against them. Malabre arguedthat the complaint failed to state a cause of action against him to recover damages for conversion,fraud in the inducement, and tortious interference with contractual rights. The Supreme Courtgranted those branches of the separate motions which were pursuant to CPLR 3211 (a) (7) todismiss the complaint insofar as asserted against the movants. We affirm.
"An unlicensed contractor may neither enforce a home improvement contract against [*2]an owner nor seek recovery in quantum meruit" (J.M. Bldrs. & Assoc., Inc. v Lindner,67 AD3d 738, 741 [2009] [internal quotation marks omitted]; see B & F Bldg. Corp. vLiebig, 76 NY2d 689 [1990]; QuickStart Constr. Corp. v Staiger, 77 AD3d 900 [2010]; Flax v Hommel, 40 AD3d 809, 810 [2007]). Since the plaintiff wasunlicensed and, therefore, failed to plead possession of a valid home improvement contractinglicense (see CPLR 3015 [e]; Administrative Code of City of NY § 20-387 [a]), theSupreme Court properly granted that branch of the Gonzalezes' motion which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them, alleging causes ofaction to recover damages for breach of contract (first cause of action), in quantum meruit(second cause of action), on an account stated (third cause of action), and for unjust enrichment(fourth cause of action) (see J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d at 741;Flax v Hommel, 40 AD3d at 810). The plaintiff contends that it was not required topossess a license, because it was Malabre's subcontractor and did not enter into a contract withthe Gonzalezes. This contention directly contradicts the allegations in the plaintiff's verifiedcomplaint (see Schuit v Tree Line Mgt.Corp., 46 AD3d 405, 406 [2007]; LeBreton v Weiss, 256 AD2d 47, 47-48[1998]), and, in any event, is without merit. The Administrative Code of the City of New Yorkrequires all home improvement contractors to be licensed, whether they are prime contractors orsubcontractors with respect to the owner (see Administrative Code of City of NY §20-386 [5], [6]; § 20-387 [a]; Sun Sys. Prefabricated Solar Greenhouses v Syz, 138AD2d 284, 284-286 [1988]; cf. Price v Close, 302 AD2d 374, 375 [2003]). Accordingly,the Supreme Court properly held that the Gonzalezes were entitled to dismissal of the complaintinsofar as asserted against them.
Moreover, the Supreme Court properly granted that branch of Malabre's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him, allegingcauses of action to recover damages for conversion (fifth cause of action), fraud in theinducement (sixth cause of action), and tortious interference with contractual rights (seventhcause of action).
Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit ofevery favorable inference (see Leon v Martinez, 84 NY2d 83 [1994]), the complaint failsto state a cause of action to recover damages for conversion against Malabre. "Although theplaintiff alleged a contractual right to payment for renovation work it performed on premisesowned by [the Gonzalezes], it never had ownership, possession, or control of" the funds allegedlyconverted by Malabre (Castaldi v 39Winfield Assoc., 30 AD3d 458, 458-459 [2006]; see Daub v Future Tech Enter., Inc., 65 AD3d 1004, 1005 [2009];Fiorenti v Central Emergency Physicians, 305 AD2d 453, 454 [2003]).
Further, the court properly held that the plaintiff's cause of action alleging fraud in theinducement should be dismissed. "The elements of a cause of action sounding in fraud are amaterial misrepresentation of an existing fact, made with knowledge of the falsity, an intent toinduce reliance thereon, justifiable reliance upon the misrepresentation, and damages" (Introna v Huntington Learning Ctrs.,Inc., 78 AD3d 896, 898 [2010]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553,559 [2009]). CPLR 3016 (b) requires that "the circumstances of the fraud must be stated indetail, including specific dates and items" (Moore v Liberty Power Corp., LLC, 72 AD3d 660, 661 [2010][internal quotation marks omitted]). The plaintiff did not set forth the time or place of Malabre'salleged misrepresentation (see Morales vAMS Mtge. Servs., Inc., 69 AD3d 691, 692 [2010]; Eastman Kodak Co. v RoopakEnters., 202 AD2d 220, 222 [1994]), and failed to properly plead the elements ofmisrepresentation of a material fact and justifiable reliance with specificity (see Brualdi v IBERIA, Lineas Aereas deEspaÑa, S.A., 79 AD3d 959, 960-961 [2010]; Couri v Westchester CountryClub, 186 AD2d 712, 714 [1992]).
The Supreme Court also properly held that the cause of action to recover damages fortortious interference with contractual rights should be dismissed, since the plaintiff failed toadequately plead the existence of a valid contract between the plaintiff and the Gonzalezes, andthat Malabre intentionally procured the Gonzalezes' breach of that contract (see Dune Deck Owners Corp. vLiggett, 85 AD3d 1093, 1095 [2011]; J.M. Bldrs. & Assoc., Inc. v Lindner, 67AD3d at 741; see also Jaffe v Gordon, 240 AD2d 232 [1997]). To the extent that thiscause of action may be construed as one to recover damages for tortious interference withbusiness relations, the plaintiff failed to allege that Malabre used wrongful means to interferewith the plaintiff's relationship with the Gonzalezes, or that his motive was solely to harm theplaintiff (see Habitat, Ltd. v Art of the Muse, Inc., 81 AD3d [*3]594, 595 [2011]; see also Carvel Corp. v Noonan, 3 NY3d 182, 189-191 [2004]).Accordingly, the Supreme Court properly granted that branch of Malabre's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him.
The plaintiff's remaining contentions are improperly raised for the first time on appeal orwithout merit. Mastro, J.P., Eng, Belen and Hall, JJ., concur.