This is a small claims action to recover the balance claimed to be due the plaintiff contractor from the homeowner . This matter was tried before the Court on January 5, 2011.

Plaintiff is a home improvement contractor. Defendant owns the home that is the subject of the purported contract. The plaintiff sent a proposal to perform home improvement work at the price of $24,100. The defendant alleges that after the proposal was sent, the plaintiff agreed to charge only $20,000. The defendant paid plaintiff $20,000. There was no claim that the work performed was not completely satisfactory or that any work was not performed.

The work performed or to be performed under the agreement was a "home improvement." The price of the contract exceeded five hundred dollars. The contract was thus a "home improvement contract" under General Business Law §770(6).

No writing constituting an agreement was offered in evidence. [*2]

In 1987, the Legislature added Article 36-A to the General Business Law to regulate Home Improvement Contracts. Gen. Bus. Law §770 et seq. The statute's plain purpose is to protect homeowners from unscrupulous, venal home improvement contractors. It protects them by, among other things, requiring a written contract containing specific language and items to be included, including granting certain rights to the homeowner. Gen. Bus. Law §771.

Gen. Bus. Law §771(1) says,

[e]very home improvement contract subject to the provisions of this article, and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract. The writing shall contain the following [enumerated requirements] . . ..

The items specifically required to be included in the written contract insure that the homeowner is provided with a contract that is specific and definite in terms of who is to do the work, what is to be done, when it is to be done, how much it will cost, and what remedies are available.

The language of the statute is mandatory - every home improvement contract shall be evidenced by a writing and signed by all the parties. The proposal offered by plaintiff was not signed by the defendant or the plaintiff.

There is a large body of law barring recovery where a home improvement contractor fails to comply with consumer protection legislation. B & F Building Corp. v. Liebig, 76 NY2d 689, 563 NYS2d 40 [1990]; Richards Conditioning Corp. v. Oleet, 21 NY2d 895, 289 NYS2d 411 [1968]; Durao Concrete, Inc. v. Jonas, 287 AD2d 481, 731 NYS2d 203 [2nd Dept, 2001]; J.P. Maguire Associates, Inc. v. Mignone, 278 AD2d 201, 717 N.Y.S.2d 253 [2nd Dept, 2000]; Ashmawy v. L.I Dock & Bulkhead Corp., 251 AD2d 500, 674 NYS2d 711 [2nd Dept ,1998]; Cappadona v. Salman, 228 AD2d 632, 646 NYS2d 27 [2nd Dept, 1996]; Millington v. Rapoport, 98 AD2d 765, 469 NYS2d 787 [2nd Dep't 1983]; Piersa v. Rosenthal, 72 AD2d 593, 421 NYS2d 91 [2nd Dep't 1979] ; Segrete v. Zimmerman, 67 AD2d 999, 413 NYS2d 732 [2nd Dep't 1979]; Zimmett v. Professional Accoustics, Ltd., 103 Misc 2d 971, 432 NYS2d 243 [App Term 1st Dep't 1980]; Buffolleno v. Denning, 82 Misc 2d 472, 473, 369 NYS2d 600 [Civ Ct Queens Co. 1975]. These cases virtually all hold that a home improvement contractor that fails to meet the requirements of the consumer protection laws cannot recover on a [*3]contract or in quantum meruit. See also, Marraccini v. Ryan, 71 AD3d 1100, 899 NYS2d 264 [2nd Dept, 2010](Contractor did not possess home improvement license in his own name, and thus could not recover fees from homeowners for improvements made to homeowners' home, even though a home improvement license had been issued to company operated by contractor).^[FN1]

The public policy of New York is fixed by the Legislature in the statutes. F.A. Straus Co. v. Canadian Pac. Ry. Co., 254 NY 407, 413-14 (1930). As a statute of this State, Gen. Bus. Law §771 sets forth the public policy of this State with respect to the requirements of home improvement contracts. As shown above, the contract plaintiff relies upon fails to meet the specific requirements of the statute since it was not signed by the parties and did not contain the required language and terms. The contract thus contravenes the public policy of the State and is therefore unenforceable.

Enforcing the alleged contract would violate the very public policy considerations giving rise to the statute's enactment. Enforcement would "emasculate the effectiveness of the legislation promulgated ... and perpetuate the evil which it seeks to eliminate." Buffolleno v. Denning, 82 Misc 2d 472 (Civ. Ct. Queens Co. 1975). Here, for the Court to enforce an alleged contract that on its face omits several terms required by law to protect the public, would render Gen. Bus. Law 771 meaningless.

Providing the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; see Cosme v Bauer, 27 Misc 3d 130(A), 2010 NY Slip Op 50638(U) [App Term, 9th Jud Dist April 8, 2010]; Ross v Friedman, 269 AD2d 584 [2nd Dept 2000]; & Williams v Roper, 269 AD2d 125 [1st Dept 2000]) and under a fair interpretation of the evidence (see Claridge Gardens v. Menotti, 160 AD2d 544 [1st Dept 1990] with this Court having had the opportunity to observe and evaluate the testimony and demeanor of the witnesses and to evaluate the credibility of the witnesses, (Nobile v. Rudolfo Valetin Inc., 21 Misc 3d 128[A], 2008 NY Slip Op 51962[U] [App Term, 9th and 10th Jud Dists [*4]2008] (see also, Vizzari v. State of New York, 184 AD2d 564 [2nd Dept 1992]; Kincade v. Kincade, 178 AD2d 510, 511 [2nd Dept 1991]; & Rotem v. Hochberg, 28 Misc 3d 127(A), Slip Copy, 2010 WL 2681875 (Table) [App Term, 9th and 10th Jud Dists , 2010]), the Court finds that

Accordingly, it is,

ORDERED and ADJUDGED that the defendant have judgment against plaintiff dismissing the action, and it is further

ORDERED and ADJUDGED that the action is dismissed.

Dated: January 6, 2011_________________________

Joseph L. Latwin

Rye City Court Judge

ENTERED

__________________

Mary Jo Garrity

Appeals —

An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the Rye City Court Clerk's office. A notice shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR § 5515. —

Pursuant to UCCA § 1701 "Appeals in civil causes shall be taken to" the appellate term of the supreme court, 9th Judicial District. —

An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:

1. service by the court of a copy of the judgment appealed from upon the appellant.

2. service by a party of a copy of the judgment appealed from upon the appellant.

3. service by the appellant of a copy of the judgment appealed from upon a party.

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. UCCA § 1703(b).