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Clean & Clear Pool Corp. v Overlander
2015 NY Slip Op 50065(U) [46 Misc 3d 137(A)]
Decided on January 15, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 15, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TOLBERT, J.P., IANNACCI and GARGUILO, JJ.
2013-339 RO C

Clean & Clear Pool Corp., Respondent,

against

Aaron Overlander, Appellant.


Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Scott B. Ugell, J.), entered May 17, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,456.77.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Justice Court for a new trial.

In this breach of contract action, plaintiff seeks to recover the principal sum of $1,456.77 based on defendant's failure to pay plaintiff for the repair of defendant's swimming pool. After a nonjury trial, the Justice Court awarded plaintiff the principal sum of $1,456.77. Upon a review of the record, we find that the judgment must be reversed and the matter remitted to Justice Court for a new trial.

Where a contractor, such as plaintiff herein, seeks to recover against a Rockland County homeowner for breach of a contract to repair the homeowner's swimming pool, the contractor is required to be a licensed home improvement contractor (see CPLR 3015 [e]; Rockland County Administrative Code §§ 286-1 [A]; 286-2, 286-3; 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]). In the case at bar, the Justice Court appears to have accepted, as proof of plaintiff's license, the testimony of a representative of plaintiff merely asserting the existence of such a license. As the court failed to properly require plaintiff to establish that it was licensed to perform home improvement work at the time the services being sued upon were rendered (see CPLR 3015 [e]), the judgment is reversed and the matter is remitted to the Justice Court for a new trial.

Tolbert, J.P., Iannacci and Garguilo, JJ., concur.


Decision Date: January 15, 2015