The following papers numbered 1 to 11 were read on this motion by plaintiff, J.B.CUSTOM MASONRY & CONCRETE, INC., for an order dismissing the defendants' counterclaims:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 4

Affirmation in Opposition-Affidavits-Exhibits........5 - 8

Reply Affirmation....................................9 - 11

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By supplemental summons and complaint filed on September 13, 2011, plaintiff J. B. CUSTOM MASONRY & CONCRETE, INC., a general contracting company, alleges that on January 11, 2010, it contracted with defendant, Kim Sutera, to provide labor and materials for remodeling and alterations on the plaintiff's home located at 133-01 Rockaway Beach Boulevard, Queens County, New [*2]York. The construction contract price was $377,000 of which the defendant paid $313,852.50, leaving a balance due of $63,147.50. Plaintiff claims that he performed all agreed upon work and is entitled to payment of the agreed upon price. Plaintiff filed a notice of pendency on August 23, 2011 and notice of mechanic's lien in the amount of $63,147.50 on May 19, 2011. The complaint asserts two causes of action, one for breach of contract for construction and improvements to the defendant's home and the second for foreclosure of the mechanic's lien filed with the County Clerk of Queens County on May 19, 2011.

Defendant Sutera claims that the plaintiff performed sub-standard work, and as a result, Ms. Sutera terminated plaintiff's services in February 2011 and hired a new contractor to repair the plaintiff's work.

Prior to filing its answer, the defendant moved to dismiss the complaint pursuant to CPLR 3211 which motion was denied by this Court by decision and order dated February 1, 2012. Defendant served a verified answer on May 7, 2012 containing four separate counterclaims and 22 affirmative defenses including one stating that the mechanic's lien is improper and invalid as it was untimely filed. The defendant's counterclaims include breach of contract, breach of implied warranties of fitness, skill and workmanlike construction, fraud and seeks a declaratory judgment that the mechanic's lien is void. Plaintiff served a reply to counterclaims on June 27, 2012.

Plaintiff now moves to dismiss the defendant's counterclaims. The counterclaims seek restitution from the plaintiff in the amount of $300,000 based on Ms. Sutera's claim that she retained "Barnhardt Restoration" a contracting company that was required to inspect, undo, rip out, demolish and reinstall sheetrock, brickwork, remodel and reframe walls and window openings, remove walls, repair the roof and make other further repairs due to the allegedly improper and poor quality work performed by the plaintiff. The counterclaims alleges that the plaintiff caused damages to her premises costing over $300,000 to repair.

In support of the motion to dismiss the counterclaim, counsel for the plaintiff asserts that Ms. Sutera hired Barnhardt Restoration, an unlicensed contractor, to repair the work that plaintiff performed. Counsel claims that the counterclaim must be dismissed as it is based upon work performed by an unlicensed contractor and citing Administrative Code of the City of New York Sections 20-386 and 2-387 states that because Barnhardt is unlicensed, the contract between Ms. Sutera and Barnhardt [*3]Restorations is void and unenforceable. Thus, counsel contends that Ms. Sutera is prohibited from seeking restitution based upon the work of an unlicensed contractor(citing Ben Krupinski Bldr. & Assoc., Inc. v. Baum, 36 AD3d 843 [2d Dept. 2007][a home improvement contractor who is unlicensed at the time of performance of the work for which he or she seeks compensation forfeits the right to recover damages based on either breach of contract or quantum meruit, as well as the right to foreclose on a mechanic's lien] Flax v Hommel, 40 AD3d 809 [2d Dept. 2007] [contractor was required to plead that he was possessed of a duly issued license in order to maintain his counterclaim to recover damages for breach of contract]).

Thus, plaintiff argues that as Barnhardt Restoration is unlicensed, and as an unlicensed contractor performed the home improvements on Ms. Sutera home, Ms. Sutera should not be permitted to recover on her counterclaims for the work performed by the unlicensed contractor. Counsel claims that allowing the counterclaim under these circumstances would violate public policy by permitting a claimant to be reimbursed for work done by an unlicensed contractor (citing Goldman v Fay, 8 Misc 3d 959 [Civil Court of the City of New York, Richmond Cty. 2005]).

In opposition, counsel for defendant Sutera states that the motion must be denied firstly, because the plaintiff's counsel has not specified in his motion which of the several counterclaims he seeks to have dismissed. Secondly, counsel claims that plaintiff's counsel has not submitted any documentary evidence in admissible form to support its claim that Barnhardt was not licensed. Defendant claims that absent any evidentiary showing by the plaintiff with regard to whether Barnhardt was licensed or unlicensed at the time the repairs were made, plaintiff has failed to adequately support its claim.

With respect to the merits, defendant states that as a result of the plaintiff's defective, improper and neglect work, Ms. Sutera was required to hire another contractor to repair and restore the defendant's premises. Defendant claims that the plaintiff has failed to submit any case law or statutory law which stands for the proposition that a homeowner may not seek restitution from a contractor for negligent and defective construction unless the subsequent contractor called in to make the repairs was licensed at the time the repairs were made. Counsel also cites O'Malley v Campione, 70 AD3d 595 [1st Dept. 2010] which states that while the failure of a contractor to have a home improvement license at the time the work is performed is a bar to the contractor recovering for work he performed it is not a bar to plaintiff's recovery of restitution for payments made [*4](also see Wildenstein v 5H & Co, Inc., 97 AD3d 488 [1st Dept. 2012][the Administrative Code is not a bar to plaintiff's recovery of restitution for payments made]).

Defendant asserts that the Home Improvement Business Law (Administrative Code of City of NY, title 20, ch 2, subchapter 22) is a consumer protection statute whose intent is to safeguard and protect consumers against fraudulent practices and inferior work by persons and businesses claiming to be home improvement contractors (see Administrative Code § 20-385). Counsel asserts that the purpose of Administrative Code § 20-385 as stated therein is to safeguard and protect the homeowner against abuses and fraudulent practices by licensing persons engaged in home improvement. The common law also provides that a defendant/homeowner may, notwithstanding whether the plaintiff is licensed or unlicensed seek as damages against a contractor for breach of contract, the cost of completing the work that was the subject of the contract and correcting the defects in the plaintiff's work (see Metropolitan Switch Bd. Mfg. Co., Inc. v B & G Elec. Contrs., 96 AD3d 725 [2d Dept. 2012] Matter of Meyers v. Mintz, 91 AD3d 457 [1st Dept. 2012]).

Upon review and consideration of the plaintiff's motion to dismiss the defendants' counterclaims, defendant's affirmation in opposition and plaintiff's reply thereto, this court finds that the plaintiff's motion is denied.

Firstly, the plaintiff has not submitted any proof or an affidavit from a person with personal knowledge as to whether Barnhardt Restorations was a home improvement contractor or was licensed or not at the time the work was performed.

Moreover, the plaintiff has not submitted any authority for its contention that a homeowner must used a licensed contractor in order to bring a counterclaim for restitution so as to recoup his or her costs for repairing the allegedly negligent and defective work of a plaintiff contractor. In addition, this court although finding numerous cases entitling a homeowner to bring a counterclaim for restitution against a suit brought by a licensed or unlicensed contractor, has not found a legal requirement that the homeowner use a licensed home improvement contractor or any other specific craftsmen as a condition to asserting a valid cause of action for restitution. The counterclaim is being brought for the benefit of the homeowner in her own right and is not being brought for the benefit of the purportedly unlicensed contractor. Although an unlicensed contractor is barred from enforcing a home improvement contract against an owner, as stated [*5]above, the legislative purpose of Administrative Code §§ 20-385 and 20-387 and CPLR 3015(e) requiring a plaintiff contractor to plead a required license is to protect homeowners from fraudulent practices by unlicensed persons engaged in the home improvement business. However, as stated by defendant's counsel it should not be used as a sword by a plaintiff/contractor in order to bar recovery by a homeowner for costs incurred in repairing and correcting a contractor's negligent or defective workmanship.

Accordingly, for all of the above stated reasons it is hereby,

ORDERED, that the plaintiff's motion for an order dismissing the defendant's counterclaims is denied.

Dated: January 23, 2014

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.