Breitling v. Boneau Design, Inc.

Breitling v Boneau Design, Inc.

2024 NY Slip Op 30381(U)

February 1, 2024

Supreme Court, New York County

Docket Number: Index No. 652861/2023

Judge: Gerald Lebovits

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 652861/2023

NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/01/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. GERALD LEBOVITS PART 07

Justice

---------------------------------------------------------------------------------X INDEX NO. 652861/2023

BERTHOLD BREITLING,

MOTION DATE 11/03/2023

Plaintiff,

MOTION SEQ. NO. 002

-v-

BONEAU DESIGN, INC., BARRY BONEAU, and BADALY

DECISION + ORDER ON

ENGINEERING, PLLC,

MOTION

Defendants.

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 23, 24,

25, 26, 27, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39

were read on this motion for DISMISSAL .

Law Offices of Charles A. Singer, Great Neck, NY (Charles A. Singer and Lawrence I. Singer of

counsel), for plaintiff.

Law Offices of Jeffrey Chabrowe, New York, NY (Jeffrey Chabrowe of counsel), for defendants

Barry Boneau and Boneau Design, Inc.

Gerald Lebovits, J.:

Plaintiff, Berthold Breitling, hired defendants, Barry Boneau, Boneau Design, Inc., and

Badaly Engineering, PLLC, to complete some repairs, renovations, and remodeling work on his

newly purchased single-family home. The parties entered into an agreement prior to the closing

of the sale of the property, under which plaintiff paid defendant $92,500.00 in anticipation of the

work that would be completed after the closing.

After some preliminary services were conducted by defendants, including providing

initial consulting on the restoration, Breitling terminated the parties’ business relationship in

March 2023. He then requested an itemized statement of fees from the defendants, as well as the

return of any unused funds. When defendants did not reply, Breitling brought this action.

Breitling has asserted claims in breach of contract, conversion, and breach of Lien Law

article 3-A. The Boneau defendants have counterclaimed for breach of contract, unjust

enrichment, and tortious interference with business relations. Breitling now moves to dismiss

those counterclaims. The motion is granted.

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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/01/2024

DISCUSSION

Breitling argues that the Boneau defendants’ counterclaims must be dismissed because

they failed to allege or plead, as required by CPLR 3015 and GBL § 771, that they are licensed

home improvement contractors, precluding them from filing any counterclaims. This court

agrees.

GBL § 771 requires that “home improvement contracts” (as defined by the statute) ne in

writing; and that the writing have various enumerated pieces of information, such as the name,

contact information, and license information of the contractor; estimated commencement and

completion dates; and a schedule for any progress payments that the contract provides for. CPLR

3015 (e) provides that if a cause of action against a consumer arises from the conduct of a

business that is required to be licensed by state or local law, the complaint must allege that

plaintiff was duly licensed; and it must include the name, number, and issuing agency of the

license.

The purpose of the licensing requirement is to “safeguard and protect the homeowner

from abuses and fraudulent practices.” (New York City Administrative Code § 20-285.) Where a

contract does not comply with these pleading requirements, a contractor may not enforce the

agreement. (Home Const. Corp. v Beaury, 149 AD3d 699, 701 [2d Dept 2017].) And an

unlicensed contractor is precluded as a matter of public policy from seeking recovery in quantum

meruit, either. (Blake Elec. Contracting Co. v Paschall, 222 AD2d 264, 266 [1st Dept 1995].)

Here, the communications between the parties, as well the defendants’ website and the

contract itself, all indicate that the defendants agreed to provide home improvement services.

Administrative Code § 20-386 defines “home improvement” by a range of terms and services,

which include replacement, habitation, and renovation of any land or building. Defendants’

website features the following advertisement, invoking the defining terms: “Custom Homes:

Renovation, Additions, New Construction.” Additionally, the contract between the parties

describes the project as seeking to “rehabilitate and renovate the single family detached dwelling

throughout,” similarly indicating an agreement to provide services recognized as home

improvement.

Defendants argue that they did not agree to offer home-improvement services, and

therefore that the contract is not subject to CPLR 3015 and GBL § 771. Administrative

Code § 20-386 provides exceptions to home improvement in cases where the agreed upon project

provides for the completion of a new building project, or cases where a contract provides for

purely decorative work that is not incidental to home improvement work. But neither exception

aids defendants.

Defendants do not argue that they were undertaking a new building project. Regardless,

only the most extreme cases fit this exception. Even “if work requires gutting existing units, it

still constitutes an alteration, conversation, renovation or improvement.” (Blake Electric

Contracting, 222 AD2d at 266.) The record reflects that the more limited work undertaken by

defendants does not come within the new-building-project exception.

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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/01/2024

Defendants rely instead on the decorative-design distinction. They argue that they were

hired for professional services rather than completing actual physical work. To support this

argument, they reference contract provisions providing that defendant would “verify existing site

conditions, prepare design studies, prepare applications, prepare applications to be filed with

local authorities, and appear before land use boards if needed.” Crucially, courts have described

decorative design as painting, installation of appliances, the arrangement of furniture and

decorative objects. (Power Cooling, INC. v Wassong, 5 Misc 3d 22, 24 [App Term, 1st Dept

2004].) To this end, prior cases addressed questions such as whether a contract for painting and

additional carpeting work crossed over into the realm of home improvement. (Coggeshall

Painting & Restoration Co. v Zetlin, 282 AD2d 364, 365 [1st Dept 2001]. This is far different

from this case, in which defendants completed design studies in anticipation of guiding a

renovation that squarely falls within the category of home improvement. Defendant does not cite,

and this court’s research has not found, any case holding that a contract containing language

promising services found within Administrative Code § 20-386 is not a contract for home-

improvement services.

Finally, defendants read a physical-work requirement into the statute, arguing that they

agreed to provide professional services while another contractor was responsible for the actual

physical-work portion, placing their services outside the scope of “home improvement.” But the

contract clearly designates defendants as “Construction Manager.” Even if the court were to take

seriously defendants’ argument that the bulk of the physical work would be taken on by another

contractor, the licensing requirement would still apply to them. The role of coordinating,

monitoring and/or supervising a renovation project has been held to be work requiring a home

improvement license, because these management services are being provided in connection with

a home improvement project. (See JMT Bros. Realty, LLC v First Realty Bldrs., Inc., 51 AD3d

453, 454 [1st Dept 2008].

Defendants also suggest that even if it applies, GBL § 771 does not bar their

counterclaims as a matter of law. They claim that because the details of the written contract

among the parties included substantially all of the provisions that GBL § 771 requires, this court

should hold the contract to have satisfied the statute. This argument is unpersuasive. The issue

here is not whether the parties’ contract included the information that the statute requires, such as

the contractor’s license number, but whether defendants were licensed contractors at all. The

absence of a license is not the kind of technical defect that a court may disregard. To the

contrary, doing so would be in direct tension with the licensing statute’s stated goal— to

“safeguard and protect the homeowner from abuses and fraudulent practices.” (Administrative

Code § 20-285.) Defendants do not provide a case holding that a contract between a consumer

and an unlicensed contractor can nonetheless satisfy GBL § 771. Nor has this court’s research

found any.

Finally, the defendants’ tortious interference counterclaim must also be dismissed. The

CPLR 3015 bar on claims by unlicensed contractors applies broadly to all claims arising out of

the conduct of home improvement. (See J.M. Bldrs &. Assoc., Inc. v Linder, 67 AD3d 738, 741

[2d Dept 2009].)

Accordingly, it is

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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/01/2024

ORDERED that plaintiff’s motion to dismiss the Boneau defendants’ counterclaims is

granted, and the counterclaims are dismissed, with costs and disbursements as taxed by the Clerk

upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff’s claims are severed and shall continue; and it is further

ORDERED that plaintiff shall serve notice of entry on all parties and on the office of the

County Clerk (by the means set forth in the court’s e-filing protocol (available on the e-filing

page of the court’s website, https://ww2.nycourts.gov/ courts/1jd/supctmanh/E-Filing.shtml),

which shall enter judgment accordingly.

2/1/2024

g

HON. GERALD

$SIG$ LESOV.!JlS

DATE J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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