| Orchid Constr. Corp. v Gottbetter |
| 2011 NY Slip Op 07824 [89 AD3d 708] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Orchid Construction Corp., Appellant, v Adam Gottbetteret al., Respondents. |
—[*1] Venturini & Associates, New York, N.Y. (August C. Venturini of counsel), for respondentAdam Gottbetter. 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.), dated July 6, 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.
The plaintiff is a contractor who performed renovation work at the apartment of thedefendant Adam Gottbetter in the City of New York pursuant to a home improvement contract.The defendant John Malabre, a project manager for a construction project at the apartmentbuilding, allegedly negotiated the terms of the agreement and directed the plaintiff's work. Theplaintiff commenced this action against Gottbetter and Malabre, alleging, among other things,that Gottbetter breached the contract by failing to compensate it for its work, and that Malabrefraudulently induced it to enter into the contract with Gottbetter. The defendants separatelymoved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst each of them. Gottbetter argued that the plaintiff was an unlicensed home improvementcontractor, and thus the complaint failed to state a cause of action against him. 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 anowner 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. v Liebig, 76 NY2d 689, 691[1990]; Quick Start Constr. Corp. vStaiger, 77 AD3d 900 [2010]; Flax v Hommel, 40 AD3d 809, 810 [2007]). Since the plaintiff[*2]was unlicensed and therefore failed to plead possession of avalid home improvement contracting license (see CPLR 3015 [e]; Administrative Codeof City of NY § 20-387 [a]), the Supreme Court properly granted that branch ofGottbetter's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against him, alleging causes of action to recover damages for breach of contract (firstcause of action), in quantum meruit (second cause of action), on an account stated (third cause ofaction), and for unjust enrichment (fourth cause of action) (see J.M. Bldrs. & Assoc., Inc. vLindner, 67 AD3d at 741; Flax v Hommel, 40 AD3d at 810). The plaintiff contendsthat it was not required to possess a license, because it was Malabre's subcontractor and did notenter into a contract with Gottbetter. This contention directly contradicts the allegations in theplaintiff's verified complaint (see Schuitv Tree Line Mgt. Corp., 46 AD3d 405, 406 [2007]; LeBreton v Weiss, 256AD2d 47, 47-48 [1998]), and, in any event, is without merit. The Administrative Code of theCity of New York requires all home improvement contractors to be licensed, whether they areprime contractors or subcontractors with respect to the owner (see Administrative Codeof City of NY § 20-386 [5], [6]; § 20-387 [a]; Sun Sys. Prefabricated SolarGreenhouses v Syz, 138 AD2d 284, 284-286 [1988]; cf. Price v Close, 302 AD2d374, 375 [2003]). Accordingly, the Supreme Court properly held that Gottbetter was entitled todismissal of the complaint insofar as asserted against him.
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 [Gottbetter], 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, 1006 [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 vIBERIA, Lineas Aereas de EspaÑa, S.A., 79 AD3d 959, 960-961 [2010];Couri v Westchester Country Club, 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 Gottbetter, and thatMalabre intentionally procured Gottbetter's 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 Gottbetter, or that his motive was solely to harm the plaintiff(see Habitat, Ltd. v Art of the Muse,Inc., 81 AD3d 594, 595 [2011]; see also Carvel Corp. v Noonan, 3 NY3d 182, 189-191 [2004]).Similarly, to the extent that the complaint asserted a cause of action to recover in quantum meruitagainst Malabre, it failed to adequately plead the cause of action, as it did not allege that Malabreaccepted services from the [*3]plaintiff or that the plaintiff "had areasonable expectation of compensation from [Malabre]" (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 489 [2009]).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. [Prior Case History: 28 Misc3d 1212(A), 2010 NY Slip Op 51297(U).]