Cunningham v. Nolte

188 A.D.3d 806

136 N.Y.S.3d 78

Michael L. CUNNINGHAM, respondent,

v.Lisa A. NOLTE, appellant.

2019–00450

Index 34703/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 19, 2020

November 12, 2020

Ellen O'Hara Woods, New City, NY, for appellant.

Daniel E. Bertolino, P.C., Nyack, N.Y. (Laurie A. Dorsainvil of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mechanic's lien, the defendant appeals from an order of the Supreme Court, Rockland County (Thomas E. Walsh II, J.), dated December 7, 2018. The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action to foreclose a mechanic's lien, to recover damages for breach of contract, and to recover in quantum meruit, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In 2018, the plaintiff commenced this action against the defendant, alleging that the parties had cohabited and shared an intimate relationship over a period of approximately two years, and that the plaintiff had performed extensive home improvement contracting work on the defendant's residence in Rockland County during that period in reliance on the defendant's promise that he would be reimbursed for the work following the impending sale of the residence. Claiming that the defendant had subsequently reneged on their arrangement, the plaintiff sought to foreclose a mechanic's lien he had filed against the residence, to recover damages for breach of contract, to recover in quantum meruit, and to impose a constructive trust over the residence. The defendant thereafter moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action on the ground, among others, that the plaintiff was not a licensed home improvement contractor in Rockland County. The Supreme Court denied the motion. We modify.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be liberally construed, giving the plaintiff the benefit of every favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "Such a motion should be granted only where, even viewing the allegations as true, the plaintiff still cannot establish a cause of action" ( Hartman v. Morganstern, 28 A.D.3d 423, 424, 814 N.Y.S.2d 169 ). Applying these principles here, we conclude that the Supreme Court should not have denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action to foreclose a mechanic's lien, to recover damages for breach of contract, and to recover in quantum meruit.

"Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211(a)(7) if it does not allege compliance with the licensing requirement" ( ENKO Constr. Corp. v. Aronshtein, 89 A.D.3d 676, 677, 932 N.Y.S.2d 501 ; see Kristeel, Inc. v. Seaview Dev. Corp., 165 A.D.3d 1243, 1244, 87 N.Y.S.3d 600 ; Holistic Homes, LLC v. Greenfield, 138 A.D.3d 689, 690, 27 N.Y.S.3d 892 ; Westchester Stone, Sand & Gravel v. Marcella, 262 A.D.2d 403, 404, 691 N.Y.S.2d 143 ). "The legislative intent to protect residential homeowners places the burden unequivocally on the contractor to ensure that the license requirements are strictly complied with" ( Michael D. Canuso Constr. v. Rogers, 267 A.D.2d 218, 219, 699 N.Y.S.2d 462 ; see Nicotra v. Manger, 64 A.D.3d 547, 548, 882 N.Y.S.2d 303 ). "Moreover, a home improvement contractor who fails to possess and plead possession of a valid license as required by relevant laws may not commence an action to foreclose a mechanic's lien" ( Kristeel, Inc. v. Seaview Dev. Corp., 165 A.D.3d at 1244, 87 N.Y.S.3d 600 ; see Nicotra v. Manger, 64 A.D.3d at 547, 882 N.Y.S.2d 303 ).

We reject the plaintiff's contention that the licensing requirement of CPLR 3015(e) did not apply herein. According to the plaintiff's allegations, he clearly engaged in home improvement contracting work, and he conceded that the cause of action to foreclose a mechanic's lien could not survive the defendant's challenge pursuant to CPLR 3211(a)(7) because he was not a licensed...