| Sabir v Noble |
| 2014 NY Slip Op 50975(U) [44 Misc 3d 128(A)] |
| Decided on June 13, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 7, 2012. The judgment, after a nonjury trial, dismissed the complaint and awarded defendant the principal sum of $6,000 on her counterclaim.
ORDERED that the judgment is modified by vacating the award in favor of defendant on her counterclaim and by providing that defendant's counterclaim is dismissed; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this action to recover the sum of $17,600 for breach of a construction contract, alleging that defendant had failed to pay the balance due. Defendant counterclaimed to recover the sum of $9,600 based on plaintiff's alleged defective workmanship. Following a nonjury trial, the Civil Court dismissed the complaint and awarded defendant the principal sum of $6,000 on her counterclaim.
A cause of action for breach of contract for contracting services against a consumer is subject to dismissal pursuant to CPLR 3211 (a) (7) if a plaintiff does not allege compliance with local licensing requirements (see CPLR 3015 [e]; Administrative Code of City of New York § 20-387 [a]; Enko Constr. Corp. v Aronshtein, 89 AD3d 676 [2011]; Orchid Constr. Corp. v Tablada, 36 Misc 3d 138[A], 2012 NY Slip Op 51446[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; C.F.C. Commercial Flooring Contrs., Inc. v Sachs, 13 Misc 3d 143[A], 2006 NY Slip Op 52307[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to allege or prove that he was licensed to perform home improvement work, we leave the dismissal of the complaint undisturbed (see Orchid Constr. Corp. v Gottbetter, 89 AD3d 708 [2011]; Orchid Constr. Corp. v Gonzalez, 89 AD3d 705 [2011]; Orchid Constr. Corp. v Tablada, 36 Misc 3d 138[A], 2012 NY Slip Op 51446[U] [App Term, 2d 11th & 13th Jud Dists 2012]).
With respect to defendant's counterclaim, we note that defendant presented no bills or invoices to support her claim of damages. Consequently, her counterclaim should have been dismissed (see O'Malley v Campione, 70 AD3d 595 [2010]).
Accordingly, the judgment is modified by vacating the award in favor of defendant on her counterclaim and by providing that defendant's counterclaim is dismissed.
Weston, J.P., Aliotta and Solomon, JJ., concur.