Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendants dated January 23, 2019 and supporting papers; (2) Affirmation In Opposition by plaintiff dated February 5, 2019 and supporting papers; (3) Reply Affirmation by defendants dated February 11, 2019 and supporting papers; and (4) oral argument before the court on March 10, 2020 it is ORDERED that the motion sequenced as #004 is decided as follows: ORDERED, that defendants’ motion to dismiss the verified complaint is granted to the extent that the third and fourth causes of action of the verified complaint are dismissed and the mechanic’s lien filed by plaintiff against the subject property is vacated and discharged, and the motion is otherwise denied; and it is further ORDERED that defendants’ application for an assessment of counsel fees against plaintiff in accordance with CPLR 6514[c] is DENIED. This is an action brought by plaintiff among other things to foreclose on a claimed mechanic’s lien and for breach of contract. The verified complaint alleges that defendants breached an agreement to pay for materials — and in one instance, labor and materials — provided by plaintiff in connection with the construction of a house on property owned by defendants at 87 Lincoln Avenue in Wyandanch, Town of Babylon, New York (the “Lincoln Avenue property”). Defendants moved to dismiss the complaint pursuant to CPLR 3211[a][1] and [a][7] and for an order cancelling the Notice of Pendency and awarding counsel fees pursuant to CPLR 6514. At oral argument conducted on March 10, 2020, the court granted defendants’ motion to vacate the Notice of Pendency and converted defendants’ motion to dismiss to a motion for summary judgment pursuant to CPLR 3211[c]. The court directed the defendants to settle an order on notice and the plaintiff to file any further opposition to the motion within thirty days from the date of service of the notice of entry of the court’s order. Defendants were to file their reply, if any, along with papers supporting their application for costs pursuant to CPLR 6514[c], within twenty days after service of plaintiff’s further submission. Defendants served an Order with Notice of Settlement on March 12, 2020; no counter-proposed order or objection was filed by plaintiff, and the order was signed and entered on May 19, 2020. Defendants filed a notice of entry of the order the following day. None of the parties filed any papers subsequent to the service and filing of defendants’ notice of entry of the May 19, 2020 order. Defendants having failed to file papers in support of their application for costs and expenses pursuant to CPLR 6514[c], that application is denied. In support of their motion to dismiss the complaint, defendants submit, inter alia, an affidavit sworn to by defendant Jeremie Tardieu and copies of the following: the pleadings, a deed giving title to the Lincoln Avenue property to Jeremie Tardieu, plaintiff’s putative mechanic’s lien, an order extending the mechanic’s lien, a contract between defendant Beautiful Gates and Taranto Contracting (“Taranto”), a photograph of the house on the property, the alleged contract upon which the complaint is based, a Town of Babylon building permit application, a Taranto Contracting building permit application with certificates of insurance, a building permit for the project at the Lincoln Avenue property, a stop work order, a communication from the Suffolk County Department of Consumer Affairs, an affidavit of plaintiff’s president, Nicholas DeSimone (“DeSimone”), made in connection with plaintiff’s earlier motion for entry of a default judgment against defendants and an affirmation plaintiff’s former counsel, also made in connection with plaintiff’s motion for entry of a default judgment against defendants. In opposition to the motion, plaintiff submits, inter alia, a fresh affidavit by DeSimone and copies of the summons and complaint, defendants’ prior notice of cross-motion and Town of Babylon inspection requests. In his affidavit in support of defendants’ current motion to dismiss the complaint, defendant Jeremie Tardieu, president of defendant Beautiful Gates Enterprises Corp. (“Beautiful Gates), states that he is the owner of the Lincoln Avenue property, that he met DeSimone in November 2014, that DeSimone held himself out as a licensed contractor operating as “Bolla Properties” and that he claimed to be a partner in Taranto. Tardieu further states that Beautiful Gates entered into a contract with Taranto to build a house on the Lincoln Avenue property for $75,100.00, and he attaches as an exhibit to his affidavit what he describes as the written contract between the two entities1. Tardieu alleges that in the summer and early fall of 2015, DeSimone and Taranto worked on the property, but in the late fall of that year, Taranto became unresponsive to communications from Tardieu. Tardieu avers that the document that plaintiff asserts is the contract upon which the complaint is based is actually a list that DeSimone drafted that consists of work that had been performed and completed by Taranto and paid for, as well items that DeSimone never performed and for which DeSimone “would make excuses.” Tardieu alleges that at DeSimone’s request, he would issue checks to various entities for work performed during the course of the project and that DeSimone and/or his associates were paid for any legitimate work that they did. Tardieu avers that the building permit issued by the Town of Babylon for the project was issued to Taranto under their contracting license. He appends a copy of the permit to his affidavit. Once Taranto left the project, the Town of Babylon issued a stop work order, a copy of which is appended to Tardieu’s affidavit. Tardieu later discovered that Taranto was not owned by DeSimone and suggests that DeSimone “borrowed” Taranto’s license in order to conduct work on the project. Tardieu obtained a response to a FOIL request from the Suffolk County Department of Consumer Affairs, which he proffers in support of the motion, in which the department indicates that plaintiff does not have a home improvement contractor’s license. Tardieu alleges that defendants never received any statements or invoices from plaintiff stating that defendants, or any of them, owed the $56,000 claimed in the complaint, nor did defendants ever acknowledge that this amount was owed. Defendants argue that the complaint should be dismissed on the grounds that they are not in breach of any agreement with plaintiff; that plaintiff cannot recover for home improvements as a matter of law because plaintiff does not and did not possess, and has failed to plead that at the time the work allegedly was performed it held, the requisite home improvement license; that the putative contract upon which the complaint is predicated is unenforceable because it lacks the elements required both by the New York General Business Law and by the statute of frauds; and that no account has been stated as plaintiff never presented defendants with any statements or invoices demanding payment of the amount plaintiff claims it is due from them (see CPLR 3015(e)). In opposition to defendants’ motion, plaintiff contends, among other things, that the provisions of the General Business Law and the Suffolk County Code upon which defendant relies — GBL Article 36-A (“Home Improvement Contracts”) and Suffolk County Code Chapter 563 (“Licensed Occupations”) — are inapplicable because the claimed contract involved the construction of a new house, for investment purposes and which defendants did not intend to occupy, and not the construction of a “custom home” — see GBL 770(7) — or a residential “home improvement” — id., 770(3). In support of plaintiff’s contention, DeSimone avers that he is the owner of plaintiff Bread Over Bread Corp., as well as Bolla Properties and Developments Corp and Elite MJF Property Inc. DeSimone states that he never held out himself or any of his companies as a contractor and that they never performed any actual construction. He states that he was approached by Tardieu while he was overseeing construction of a house on one of his own properties and that following several meetings, he was asked by Tardieu and Tardieu’s mother to act as a consultant and to manage construction of the house on the Lincoln Avenue property, in exchange for which he was to “share in a portion of the profits realized by the sale of the subject property.” Toward that end, he introduced Tardieu to Taranto, and facilitated the project by acting as the contact person between Taranto and other entities as well as the Town of Babylon Building Department. He avers that he is not nor did he ever hold himself out to be the owner of Taranto. According to DeSimone, before the completion of Stage 1 of the project, which encompassed the construction of the shell of the house but none of the interior work, Tardieu “apparently had run out of funds and was unable to commence Stage 2″ and asked DeSimone to “advance the funds and pay Taranto to continue working and complete the finishing work which was contemplated in ‘Stage 2′ since Taranto would not continue to work without payment.” Exhibit H, according to DeSimone, represents the materials and work for Stage 2 of the construction project, which Taranto was to perform. DeSimone avers that in fact Taranto was paid by him and provided all the Stage 2 materials and work, all of it passed inspection by the Town of Babylon and none of it was rejected by defendants or anyone on their behalf. The stop work order, he further avers, was occasioned by the fact that he refused to schedule the final inspection of the house in December of 2015 because defendants had failed to make a promised December 7, 2015 payment to him. DeSimone claims that in order to avoid paying him, Tardieu attempted to schedule the final inspection himself and informed the Town that Taranto was no longer the “contractor of record,” as a result of which the Town requested a notarized letter with respect to the change and then issued the stop work order because — as is indicated on the stop work order itself — the contractor Tardieu designated to replace Taranto had not provided the Town with the required proof of insurance coverage. It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (see Roth v. Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v. Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Failure to comply with GBL Article 36-A and Suffolk County Code Chapter 563. If, as claimed by defendants, the alleged contract and its subject matter is governed by Article 36-A of the General Business Law and plaintiff was required to hold a home improvement license pursuant to Suffolk County Code Chapter 563, then plaintiff is precluded from recovering payment from defendants, whether under the claimed contract or for quantum meruit (see Durao Concrete v. Jonas, 287 AD2d 481, 731 NYS2d 203 [2d Dept 2001]; citing B&F Bldg. Corp. v. Liebig, 76 NY2d 689, 563 NYS2d 40 [1990]; Richards Conditioning Corp. v. Oleet, 21 NYS2d 895, 289 NYS2d 411 [1968]; Todisco v. Econopouly, 155 AD2d 441, 547 NYS2d 103 [2d Dept 1989]; see also Enko Const. Corp. v. Aronshtein, 89 AD3d 676, 932 NYS2d 501 [2d Dept 2011]). In that event, defendants will have made a sufficient prima facie showing of entitlement to judgment as a matter of law on the issue of whether plaintiff can recover on a putative home improvement contract when it is not a licensed contractor2. Further, because the claimed contract does not contain the elements required in a home improvement contract (see GBL §771[a]-[h]), it would be unenforceable for that reason, as well (see generally Consigliere v. Grandolfo, 30 Misc 3d 1207(A) [NY City Ct 2011] (“The statute’s plain purpose is to protect homeowners from unscrupulous, venal home improvement contractors. It protects them by, among other things, requiring a written contract containing specific language and items to be included, including granting certain rights to the homeowner….”); compare Johnson v. Robertson, 131 AD3d 670, 672 [2d Dept 2015]). Whether plaintiff’s claim is precluded by the provisions of GBL Article 36-A and Chapter 563 of the Suffolk County Code presents issues of fact that cannot be fully resolved on the current record; as was stated by the Appellate Division in Enko Const. Corp. v. Aronshtein, supra, which involved a similar provision of the Nassau County Administrative Code: Although the licensing requirement does not apply to the construction of a new home, interpreting a functionally equivalent local law, this Court concluded that “[t]he statutory exemption for ‘construction of a new home’ is limited to the creation of a structure, where none previously existed…Even if a dwelling is stripped to the frame and rebuilt, the work constitutes the renovation of an existing home, not the erection of a new one” (J.M. Bldrs. & Assoc., Inc. v. Lindner, 67 A.D.3d at 740, 889 N.Y.S.2d 60 [some internal quotation marks omitted] 89 AD3d at 678; see also Blake Elec. Contr. Co., Inc. v. Paschall, 222 AD2d 264, 265 [1st Dept 1995] (same as to the exemption in New York City Administrative Code §20 — 386(2) for “construction of a new home”). Account Stated. “An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due” (Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868, 869, 600 NYS2d 790 [3d Dept 1993]; see Landau v. Weissman, 78 AD3d 661, 913 NYS2d 107 [2d Dept 2010]; Cameron Eng’g & Assoc., LLP v. JMS Architect & Planner, P.C., 75 AD3d 488, 903 NYS2d 755 [2d Dept 2010]). “By retaining billing statements and failing to object to the account within a reasonable time, the recipient of the bill implies that he or she agrees with the sender regarding the amount owed” (Stephan B. Gleich & Associates v. Gritsipis, 87 AD3d 216, 223, 927 NYS2d 349 [2d Dept 2011]; see Rodkinson v. Haecker, 248 NY 480, 485, 162 NE 493 [1928]; American Express Centurion Bank v. Cutler, 81 AD3d 761, 762, 916 NYS2d 622 [2d Dept 2011]; Landau v. Weissman, supra at 661). Defendants deny ever receiving any statements or invoices for the $56,000 claimed by plaintiff and insist that they never acknowledged that such an amount had become due. While plaintiff contends that Exhibit H to the current motion represents the agreement between the parties with respect to the amounts that would be owed plaintiff in connection with the completion of Stage 2 of the project, and Mr. DeSimone alleges that he made “multiple demands for payment” of the amounts called for by that agreement and that Mr. Tardieu made “multiple promises to do so,” plaintiff has not submitted any written statements or invoices to defendants stating that the claimed $56,000.00 was due, nor, apart from Exhibit H, the claimed underlying agreement, are there any subsequent transactions between the parties cited that reflect defendants’ direct or tacit acknowledgment that the obligation had matured. In these circumstances, defendants are entitled to summary judgment dismissing plaintiff’s claim based upon a theory of account stated, the fourth cause of action asserted in the verified complaint. The court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein. The foregoing constitutes the decision and order of the court. __FINAL DISPOSITION __XX__ NON-FINAL DISPOSITION Dated: December 22, 2020
