County Court, Suffolk County, November 8, 2017

Lieb at Law, P.C., Center Moriches, for plaintiff.

Kelly & Hulme, P.C., Westhampton Beach, for defendants.

{**58 Misc 3d at 229}The plaintiff Hamptons Landscaping Service Inc. moves seeking summary judgment to recover $17,217, from the defendants Michael and Frances Sherman, asserting breach of contract and unjust enrichment causes of action.

The Shermans have cross-moved seeking an order dismissing Hamptons' complaint, asserting that Second Department case law is clear that a home improvement contractor forfeits his rights to recover under either cause of action if the contractor does not have all applicable home improvement licenses.

It is undisputed that Hamptons did in fact have both a Suffolk County and Southampton [*2]Township home improvement license when it entered into a landscaping services contract with Mr. Sherman on January 25, 2016. Thereafter landscaping services were rendered and payment was routinely made. Hamptons' Southampton license expired September 10, 2016, and was not renewed. Hamptons was owed $3,557.50 on said date. Thereafter Hamptons rendered approximately $14,660 of additional services.

The law is well settled that a home improvement contractor may not recover upon a breach of contract or quantum meruit cause of action in the absence of procuring a home improvement license. (See Ellis v Gold, 204 AD2d 261 [2d Dept 1994].) Landscapers are considered home improvement contractors under both the Suffolk County and Southampton home improvement laws. The contractor must have all required licenses, even if there exists a county/town/city duplicate distinction. (See Vatco Contr., Ltd. v Kirschenbaum, 73 AD3d 1163 [2d Dept 2010].) The contractor is required to plead the existence and license number of its home improvement license in its complaint, which was done in the instant case. (See CPLR 3015 [e]; complaint para 2.)

The novel issue posited for this court is whether a properly licensed contractor may recover for work contracted and performed, while licensed, if its license lapses in the middle of its contracted job.

The New York Court of Appeals has justified the prohibition of recovery for unlicensed contractors asserting that "the purpose of [a licensing] scheme is to protect the . . . health and safety" of the public. (Richards Conditioning Corp. v Oleet, 21 NY2d 895, 896 [1968].) The High Court further explained that the existence of the license was imperative when the contract was signed and the work performed (see B & F Bldg. Corp. v Liebig, 76 NY2d 689 [1990]). In the case at bar the{**58 Misc 3d at 230} contractor did have both the Suffolk and Southampton licenses when the contract was signed and when $3,557.50 of the sued upon work was performed. This court sees no public policy purpose which would be served by finding that continued maintenance of a license is required to recover for services rendered while properly licensed. While somewhat inequitable, the legal doctrine of "stare decisis" requires that the $14,660 of post license work be disallowed.

The court therefore grants the plaintiff's application for summary judgment against defendant Michael Sherman for $3,557.50 plus interest from September 10, 2016 and costs and denies the defendants' application to dismiss the plaintiff's complaint.