Appeal from an order of the District Court of Nassau County, First District (Colin F. O'Donnell, J.), dated May 1, 2012. The order, insofar as appealed from, granted the branch of defendant's motion seeking to dismiss the action for failure to state a cause of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of defendant's motion seeking to dismiss the action for failure to state a cause of action is denied, and the matter is remitted to the District Court for all further proceedings.

In this small claims action to recover for breach of contract stemming from work performed at plaintiffs' residence, plaintiffs appeal from so much of an order of the District Court as granted the branch of defendant's motion seeking to dismiss the action for failure to state a cause of action.

In our view, the dismissal of the action at this juncture did not render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804,1807). While defendant Fine Finish Construction, Inc. asserted in support of its motion that it did not perform the work at plaintiffs' home and that plaintiffs are in possession of a written contract with an entity known as "Fine Finish Dormers & Extensions, Inc.," defendant failed to definitively state that it had not entered into a contract with plaintiffs. In any event, we take [*2]cognizance of the admission in defendant's brief on appeal that plaintiffs' check, issued to "Fine Finish" at the time the work in question was performed, "apparently" was deposited into defendant's bank account.

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant's motion seeking to dismiss the action for failure to state a cause of action is denied, the action is reinstated and the matter is remitted to the District Court for all further proceedings.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur.
Decision Date: August 08, 2013