UNLICENSED CONTRACTORS CAN RECOVER IF IT'S A NEW HOME?

Caveat emptor when you build a new home on your existing land. 

BREAD OVER BREAD CORP. v. TARDIEU, 2020 NY Slip Op 51537 - NY: Supreme Court December 22, 2020:

"......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).

.....

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 contractor^[2]. 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 AD3d 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").

......."

ANOTHER UNLICENSED CONTRACTOR CASE

Gomez v. Ralph, NYLJ February 20, 2020, Date filed: 2020-02-04, Court: Civil Court, Bronx Judge: Judge Bianka Perez, Case Number: CV-022411-19/BX:

"FINDINGS OF FACT
As per the plaintiff’s testimony, the plaintiff is an unlicensed contractor who was contracted to do work at the defendant’s premises. Plaintiff testified the defendant asked him to remove and replace shingles and to remove and replace the gutters. Plaintiff stated he did 95 percent of the work. The contract price per the Plaintiff was $17,000.00. Plaintiff states he was only paid $5,000.00. Plaintiff admits not having a license to do the work. He said he has worked on many projects for the defendant. Receipts for supplies were admitted into evidence as Plaintiff’s 1-5. Plaintiff did not have a copy of the contract.

Defendant states the contract price was $12,000.00 and he paid plaintiff $10,500.00. He states he has used the plaintiff for many jobs for over 20 years. Defendant produced his copy of the contract in evidence as Defendant’s A.

The defendant states he paid plaintiff $10,500.00 for the work performed and has submitted in evidence as Defendant’s A the receipts for payments received, Deposit of $2,000.00 on 9/9/19, payment of $2,000.00 on 9/10/19, payment of $1,000.00 on 9/16/19, payment of $2,000.00 on 9/20/19, $950.00 for materials, $850.00 for garbage disposal, and $1,650.00 for gutter on 10/4/19.
Defendant states that the plaintiff started the work but did not finish because he wanted more money. Defendant states that after a month of calling the plaintiff to finish the work he hired another contractor to finish the job and paid $7,000.00, receipt in evidence as Defendant’s B.

According to the plaintiff, the defendant told him not to come to work during the Jewish holidays and when he returned to finish the work, he was told not to do any further work by defendant’s daughter. Seven photographs of the work were marked as Plaintiff’s 6.

The plaintiff seeks a money judgment for the balance due for work performed in the amount of $12,000.00.

DISCUSSION
CPLR 3015(e) requires a home improvement contractor to be duly licensed prior to commencing a cause of action against a consumer for payment for services rendered. This regulatory scheme protects homeowners from abuses and fraudulent practices by persons engaged in the home improvement business (see, Millington v. Rapoport, 98 A.D.2d 765, 469 N.Y.S.2d 787).

CPLR 3015(e) states as follows:

“License to do business. Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York….., the complaint shall allege, as part of the cause of action, that plaintiff was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issued such license. The failure of the plaintiff to comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter.”

The failure to comply with the statute can lead to draconian results, such as a subcontractor being precluded from receiving payment for a job well done. As stated in Kristeel, Inc. v. Seaview Development Corporation, 165 A.D.3d 1243, 87 N.Y.S.3d 600 (2d Dept 2018), where the Second Department revered supreme court and granted defendants’ motion to dismiss the complaint.
Thus, as the plaintiff has failed to properly plead his complaint and the plaintiff has admittedly performed work without a license. The matter is hereby dismissed."

CAN YOU RECOUP PAYMENTS TO UNLICENSED CONTRACTOR

The answer is no if the fact that the contractor is unlicensed is the sole basis for seeking recoupment.

Rusin v Design-Apart USA, Ltd. 2019 NY Slip Op 05172 Decided on June 26, 2019 Appellate Division, Second Department;

"The plaintiff and the defendant executed a contract, in which it was agreed that the defendant would furnish and install kitchen cabinets at the plaintiff's home for a total cost in excess of $64,000. The plaintiff paid to the defendant $61,449.34 pursuant to the contract. After the cabinets were furnished and installed, the plaintiff commenced this action against the defendant, seeking, in the first cause of action, to recover $61,449.34 on the basis that the defendant was not a licensed home improvement contractor at the time it performed the work. In the second cause of action, the plaintiff sought to recover damages for breach of contract, alleging that the defendant's work was defective.

After joinder of issue, the plaintiff moved for summary judgment on the first cause of action, and the defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss that cause of [*2]action. In an order dated January 8, 2018, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. On January 12, 2018, a judgment was entered in favor of the plaintiff and against the defendant in the principal sum of $61,449.34. The defendant appeals.

The plaintiff failed to demonstrate her prima facie entitlement to judgment as a matter of law on the first cause of action. Although an unlicensed contractor may not enforce a home improvement contract against a homeowner or seek recovery in quantum meruit for work performed (see B & F Bldg. Corp. v Liebig, 76 NY2d 689; Holistic Homes, LLC v Greenfield, 138 AD3d 689, 690), here, the defendant is not seeking to enforce the parties' contract or to recover in quantum meruit. Rather, the plaintiff homeowner is seeking to recover money already paid to the defendant pursuant to the contract. Where a homeowner receives the benefit of the services of an unlicensed contractor, he or she is not entitled to recoup payments made for such services solely on the basis that the defendant was unlicensed (see Brite-N-Up, Inc. v Reno, 7 AD3d 656, 657; Voo Doo Contr. Corp. v L & J Plumbing & Heating Co., 264 AD2d 361; Sutton v Ohrbach, 198 AD2d 144; Segrete v Zimmerman, 67 AD2d 999, 1000; see also Goldman v Garofalo, 71 AD2d 650). "The parties, in these circumstances, should be left as they are" (Segrete v Zimmerman, 67 AD2d at 1000; see Brite-N-Up, Inc. v Reno, 7 AD3d at 657). Thus, the plaintiff was not entitled to summary judgment on the first cause of action.

Concomitantly, even assuming the fact alleged in the first cause of action—that the defendant was unlicensed at the time it performed the work—to be true, the plaintiff is not entitled to recover, on that basis, payments made pursuant to the contract. Accordingly, the defendant's cross motion pursuant to CPLR 3211(a)(7) to dismiss that cause of action should have been granted (see generally Leon v Martinez, 84 NY2d 83, 87)."

UNLICENSED SUBCONTRACTORS

Kristeel, Inc. v Seaview Dev. Corp., 2018 NY Slip Op 07296, Decided on October 31, 2018, Appellate Division, Second Department:

"On October 3, 2014, the plaintiff, a steel subcontractor, entered into a contract with the defendant Seaview Development Corp. (hereinafter Seaview), a general contractor, to furnish work, labor, services, and materials for the improvement of certain residential property located in the Town of East Hampton, owned by the defendant 14 Fieldview, LLC. According to the plaintiff, although it performed the work, Seaview failed to pay the full contract price. The plaintiff filed a mechanic's lien against the property and commenced this action to recover the balances it claimed it was owed and to foreclose on the mechanic's lien. The defendants moved pursuant to, inter alia, CPLR 3211(a)(7) to dismiss the complaint and to vacate the mechanic's lien, asserting that, since the plaintiff lacked a home improvement contracting license to perform the work on the property, it could not enforce the contract. Additionally, the defendants contended that, since the plaintiff was unlicensed, the subject mechanic's lien was invalid on its face and should, therefore, be vacated. The Supreme Court denied the defendants' motion, and the defendants appeal.

"Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211(a)(7) if it does not allege compliance with the licensing requirement" (ENKO Constr. Corp. v Aronshtein, 89 AD3d 676, 677; see Holistic Homes, LLC v Greenfield, 138 AD3d 689, 690; Westchester Stone, Sand & Gravel v Marcella, 262 AD2d 403, 404). Moreover, a home improvement contractor who fails to possess and plead possession of a valid license as required by relevant laws may not commence an action to foreclose a mechanic's lien (see Nicotra v Manger, 64 AD3d 547).

Here, the complaint did not allege that the plaintiff was duly licensed in the Town of East Hampton at the time the services were rendered (see Town Code of the Town of East Hampton [hereinafter Town Code] § 156-4). Moreover, in opposition to the defendants' motion, the plaintiff did not dispute that it did not possess the necessary license. The plaintiff's contention that the work it performed was not for home improvement but, rather, was for the construction of a new home for which a home improvement contracting license was not necessary, is without merit. The Town Code defines "home improvement" as including, inter alia, "[n]ew home construction" (Town Code § 156-3). Moreover, contrary to the plaintiff's contention, the defendants are entitled to the protection of CPLR 3015(e) and the applicable licensing requirements (see Town Code §§ 156-2, 156-3; Lorenzo Marble & Tile v Meves, 236 AD2d 448, 449). Accordingly, the Supreme Court should have granted the defendants' motion (see Holistic Homes, LLC v Greenfield, 138 AD3d at 690; ENKO Constr. Corp. v Aronshtein, 89 AD3d at 678; Nicotra v Manger, 64 AD3d at 548; Flax v Hommel, 40 AD3d 809, 810; Lorenzo Marble & Tile v Meves, 236 AD2d at 449)."

WHAT IS HOME IMPROVEMENT FOR PURPOSES OF CONSUMER AFFAIRS LICENSE

TPE VENTURES, INC. v. NASSAU COUNTY OFF. OF CONSUMER AFFAIRS, 2017 NY Slip Op 50839 - NY: Supreme Court 2017:

"........The NCAC provides that the definition of home improvement "means repair, maintenance, replacement remodeling, alteration, conversion, modernization, or addition to any land or building, or that portion thereof, which is used as a private residence or dwelling place for not more than three families, and other improvements to structures or upon land which is adjacent to a dwelling and shall include, but not be limited to gardening/landscaping."

In its Verified Petition, the Petitioner admits that "core aeration involves perforating the soil with small holes to allow air, water and nutrients to penetrate the grass roots. This helps the roots grow deeply and produce stronger, more vigorous lawn." In similar fashion, the Hearing Officer determined that core aeration "involves alteration of the earth".

The cornerstone of this Court's review of the County's determination is one of rationality. The Hearing Officer's conclusion that the act of core aeration alters the land of the Petitioner's customers and thus requires a home improvement license issued by Nassau County is supported by a rational basis and is reasonable. Judicial function is exhausted when there is found to be a rational basis for conclusions approved by an administrative body."

AGAIN WHEN DEALING WITH UNLICENSED CONTRACTORS

This case is a year old but a warning to those in home improvement to go through the licensing procedure. HOLISTIC HOMES, LLC v. Greenfield, 138 AD 3d 689 - NY: Appellate Div., 2nd Dept. 2016:

"`An unlicensed contractor may neither enforce a home improvement contract against an owner nor seek recovery in quantum meruit'" (J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 741 [2009], quoting Blake Elec. Contr. Co. v Paschall, 222 AD2d 264, 266 [1995]; see ENKO Constr. Corp. v Aronshtein, 89 AD3d 676, 677 [2011]). "Pursuant to CPLR 3015 (e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211 (a) (7) if it does not allege compliance with the licensing requirement" (ENKO Constr. Corp. v Aronshtein, 89 AD3d at 677; see Westchester Stone, Sand & Gravel v Marcella, 262 AD2d 403, 404 [1999]).

Here, the complaint did not allege that the plaintiff was duly licensed in Nassau County at the time of the services rendered (see Nassau County Administrative Code § 21-11.2). Moreover, in opposition to the motion of the defendant Alan B. Greenfield (hereinafter the defendant), the plaintiff conceded that it did not possess the necessary license. Therefore, the plaintiff was not entitled to enforce its contract against the defendant or to recover in quantum meruit (see ENKO Constr. Corp. v Aronshtein, 89 AD3d at 677; Flax v Hommel, 40 AD3d 809, 810 [2007]; cf. Ozkurt v Hyatt Realty, LLC, 117 AD3d 926, 926 [2014])."

MORE ON UNLICENSED CONTRACTORS

MATTER OF MacNAMARA v. Edwards, 2016 NY Slip Op 32199 - NY: Supreme Court 2016:

"The established law of the Second Department is clear that a home improvement contractor who is unlicensed at the time of the 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 (Flax v. Hommel, 40 AD3d 809, 810, 835 NYS2d 735, 736 [2d Dept. 2007]; accord Emergency Restoration Servs. Corp. v. Corrado, 109 AD3d 576, 577, 970 NYS2d 806, 807 [2d Dept. 2013][applying Suffolk County Code regulating unlicensed home improvement]; Racwell Const., LLC v. Manfredi, 61 AD3d 731, 732-33, 878 NYS2d 369, 371 [2d Dept. 2009][Westchester County]). Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal . . . if it does not allege compliance with the licensing requirement" (CMC Quality Concrete III, LLC v. Indriolo, 95 AD3d 924, 925-26, 944 NYS2d 253, 254-55 [2d Dept. 2012]).

Generally speaking the law of this department recognizes that a homeowner may seek restitution for payments actually made for work which was not performed or for defective work (Brite-N-Up, Inc. v. Reno, 7 AD3d 656, 657, 776 NYS2d 839, 840 [2d Dept. 2004]; Goldstein v. Gerbano, 158 A.D.2d 671, 552 N.Y.S.2d 44, 45 [2d Dept. 1990] [plaintiffs were entitled to rescind the contracts and to recover the amounts designated in the judgment as a result of the defendant's failure to perform]; Segrete v. Zimmerman, 67 AD2d 999, 1000, 413 NYS2d 732, 733 [2d Dept. 1979]; compare with Sutton v. Ohrbach, 198 AD2d 144, 144, 603 NYS2d 857, 857 [1st Dept. 1993][plaintiff may not use the statute as a sword to recoup monies already paid in exchange for the purportedly unlicensed services]).

......................
Moreover, while case law exists which supports a homeowner seeking a monetary remedy as against an unlicensed home improvement contractor, it is similarly clear that those circumstances are warranted for the costs associated to cover, i.e. costs incurred by the homeowner for remediating or substitutionary performance (See e.g. Maltese, Joseph & Porgia v New England Contractors, 17 Misc.3d 1134(A), *3 [Sup, Ct., Kings Co. 2007][plaintiff homeowner parties to home improvement project may recover against unlicensed contractor upon presentation of evidence of out of pocket losses due to the failure to perform under the contract])."

ACTIONS AGAINST UNLICENSED CONTRACTORS

The rules differ somewhat in the First and Second Department. This was discussed recently in MATTER OF MacNAMARA v. Edwards, 2016 NY Slip Op 32199 - NY: Supreme Court 2016:

"The established law of the Second Department is clear that a home improvement contractor who is unlicensed at the time of the 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 (Flax v. Hommel, 40 AD3d 809, 810, 835 NYS2d 735, 736 [2d Dept. 2007]; accord Emergency Restoration Servs. Corp. v. Corrado, 109 AD3d 576, 577, 970 NYS2d 806, 807 [2d Dept. 2013][applying Suffolk County Code regulating unlicensed home improvement]; Racwell Const., LLC v. Manfredi, 61 AD3d 731, 732-33, 878 NYS2d 369, 371 [2d Dept. 2009][Westchester County]). Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal . . . if it does not allege compliance with the licensing requirement" (CMC Quality Concrete III, LLC v. Indriolo, 95 AD3d 924, 925-26, 944 NYS2d 253, 254-55 [2d Dept. 2012]).

Generally speaking the law of this department recognizes that a homeowner may seek restitution for payments actually made for work which was not performed or for defective work (Brite-N-Up, Inc. v. Reno, 7 AD3d 656, 657, 776 NYS2d 839, 840 [2d Dept. 2004]; Goldstein v. Gerbano, 158 A.D.2d 671, 552 N.Y.S.2d 44, 45 [2d Dept. 1990] [plaintiffs were entitled to rescind the contracts and to recover the amounts designated in the judgment as a result of the defendant's failure to perform]; Segrete v. Zimmerman, 67 AD2d 999, 1000, 413 NYS2d 732, 733 [2d Dept. 1979]; compare with Sutton v. Ohrbach, 198 AD2d 144, 144, 603 NYS2d 857, 857 [1st Dept. 1993][plaintiff may not use the statute as a sword to recoup monies already paid in exchange for the purportedly unlicensed services])."

MORE RE: THE SUIT ON THE YELP REVIEW

Here is the full decision and order on the recent "Yelp Defamation" suit. What was not reported in the press was that the "defamed" home improvement contractor was unlicensed.

"Technovate LLC v Fanelli 2015 NY Slip Op 51349(U) Decided on September 10, 2015 Civil Court Of The City Of New York, Richmond County Straniere, J. 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 September 10, 2015
Civil Court of the City of New York, Richmond County

Technovate LLC d/b/a MR. SANDLESS OF STATEN ISLAND and MATTHEW GARDINER, Plaintiff,

against

Emily Fanelli a/k/a EMILY OLIVO, Defendant.



Emily Fanelli, Claimant, ,

against

Technovate LLC D/B/A MR. SANDLESS OF STATEN ISLAND Defendant.



003713/15



Technovate LLC and Matthew Gardiner represented by:

Jeffrey David Eisenber, ESQ.

341 Yetman Avenue,

Staten Island, NY 10307

Emily Fanelli a/k/a Emiluy Olivo Self Represented

Philip S. Straniere, J.

"A good name is rather to be chosen than great riches." Proverbs 22:1.

Plaintiffs, Technovate LLC d/b/a Mr. Sandless of Staten Island and Matthew Gardiner, [*2]commenced this civil action against the defendant, Emily Fanelli a/k/a Emily Olivo, alleging that the defendant's postings on internet sites about the plaintiffs qualified as libel per se entitling plaintiffs to damages.

In a separate action, claimant Emily Fanelli, commenced a small claims action against defendant, Matt Gardiner, individually, alleging defective repairs to the floors of her home. The small claims action was dismissed without prejudice on April 16, 2015, when defendant established that he, as an individual, was not a proper party to the proceeding. Claimant then made a motion to restore the matter to the small claims calendar alleging in that application that there was no entity registered as Mr. Sandless. The court heard the application on August 18, 2015 and granted the motion to restore the matter to the calendar amending the caption of the defendant in the small claims matter to Technovate LLC d/b/a Mr. Sandless of Staten Island. The claim against Gardiner individually was not restored.

Plaintiffs produced documentation that since 2006 Technovate, LLC is registered as a domestic limited liability company with the Department of State and that entity has filed a certificate of doing business under an assumed name for Mr. Sandless of Staten Island, with the Richmond County Clerk.

The parties consented to have the matters tried together on August 18, 2015. Plaintiffs Technovate and Gardiner were represented by counsel in both actions. Defendant Fanelli appeared without counsel in both suits.

Background:

Mr. Sandless, which is a national franchise, advertises itself as an "affordable wood floor refinishing without the hassle of dust, odors and long drying periods." It promotes that its chemicals are "green" certified with no mess to clean up. The service is guaranteed for five years. The website advertisement also offers traditional sanding methods.

On February 25, 2015, Mr. Sandless entered into an agreement with Emily Olivo to refinish the living room and dining room floors at 50 Hudson Place, Staten Island, New York. The agreement is reflected on a "service work order" from Mr. Sandless. The work order indicates that Mr. Sandless serves "Morris and Union Counties" which are in New Jersey. The document has no indication of a local Staten Island business being involved.

The price for the services was $695.00. The invoice reflects sales tax being charged, but that amount is deleted leaving the total cost to the defendant at $695.00. At trial each side claimed the other side proposed eliminating the tax for cash. The fact that a merchant and a customer would agree to a "cash" price without the required sales tax being charged is as shocking as learning that there is gambling at Rick's. The service order is allegedly signed by the defendant as agreeing to the work and then later accepting the work as being satisfactorily performed.

Defendant stated that she located Mr. Sandless through the business listings of silive.com, which is an online service run by the Staten Island Advance. She testified that after [*3]the initial work was done, she noticed some areas that needed attention. The problem was described by the plaintiffs as being some raised acrylic. She contacted the plaintiffs and on March 4, 2015, the plaintiffs sent out a crew to address the defendant's concerns. Defendant was apparently dissatisfied with both the initial job and the corrective actions taken. Leading to her admitting to posting reviews about her experience with the plaintiffs on the internet and to the commencement of the small claims action.

On March 4, 2015 identified as "Emily" she posted the following "review" on silive (presented below as it appeared on the website):

this matt the owner is a scam

do not use mr sand less of staten island matt is the name he will destroy you floor he is a liar and con artist beware

On March 4, 2015 a similar review by "Emily F." was posted on Yelp (presented below as it appeared on the website).

this guy mat the owner is a scam do not use him you will regret doing business with this company I'm going to court he is a scam customers please beware he will destroy your floors he is nothing by a liar he robs customers and promises you everything if you want shit then go with him if you like nice work find another he is A SCAM LIAR BULLSHITTER

On March 4, 2015, defendant filed her small claims action in Civil Court (SCRNo.172/15) seeking $3,700.00 in damages for defective repairs.

On March 20, 2015, "Emily F." posted an "updated review" on Yelp (presented below as it appeared on the website).

this is a night mare of a company you can not imagine what my floors look like stay away from matt gardiner your floors start to crack the stuff comes off the floors are left with no shine i had beautify shine before matt came to my house believe me if you want to see matts work and you rare thinking of hiring him contact me per my email and i will gladly show his work here is my e email address it is emilyfanelli@aol.com i would show you his terrible work you would thank me please advise any now who is thinking of wiring with him stay away he is the island biggest scam person around, DO NOT HAVE YOUR FLOORS DONE WITH THIS MAN, CUSTOMERS PLEASE BE WARE OF THIS MAN MATT GARDINER HE IS A SCAM HE TAKES YOUR MONEY AND DESTROYS YOUR HOME

he des not even deserve a one star 0 stars he gets

Defendant on April 1, 2015 hired Filippo Custom Carpentry allegedly to redo all of the floors Mr. Sandless had treated. Filippo began the work on April 7, 2015 and completed it on April 10, 2015. The defendant paid him $2,613.00, including the sales tax, for the service. The expenses incurred in correcting the plaintiff's work are the basis of defendant's small claims action. The invoice from Filippo recites that he had previously seen defendant's floors and describes what the problems he observed after Mr. Sandless treated them. The Filippo invoice is more of a narrative of the conditions at defendant's home rather than a description of the actual work Filippo performed.

On June 28, 2015, plaintiffs brought their defamation action to which the defendant filed an answer on July 30, 2015. Civil Practice Law and Rules (CPLR) §3016(a) in regard to claims for libel or slander requires that the particular words complained of as being the basis for the claim be set forth in the complaint. Plaintiffs' complaint has set forth the specific words of defendant's posting which plaintiffs assert are defamatory.

An unanswered question is how did Fanelli know to sue for $3,700.00 in damages in the small claims action filed on March 4, 2015 when the repairs were not completed until April 10, 2015 and she allegedly had additional expenses because she had to be out of the house for three days while her floors were redone?

Legal Issues:

A. Are the Internet Postings of the Defendant Libel Per Se?

In New York defamation is defined as the making of a false statement of fact which "tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace" [Rinaldi v Holt, Reinhart & Winston, 42 NY2d 369, 379, cert denied 434 US 969 (1977)]. A libel action cannot be maintained unless it is based on the published assertion of fact rather than on assertions of opinion [Brian v Richardson, 87 NY2d 46 (1995)]. For defamation purposes "publication" means communicated to a third person.

The elements of defamation are (1) the publishing of a false statement to a third party; (2) without authorization or privilege; (3) fault, judged at a minimum by a negligence standard; and (4) special harm or defamation per se [Dillon v City of New York, 261 AD2d 34 (1999)]. Under New York law, among the categories where words are per se defamatory are statements that imply criminal activity, or tend to injure a party's trade, occupation or business.

"A statement which concerns a person in his trade or business and tends to injure him therein is actionable per se" (citations omitted). Likewise, with regard to business entities, "statements which impugn the basic integrity, creditworthiness, or competence of the business, are defamatory per se, and thus, special damages need not be pleaded (citations omitted).

[Prince v Fox Television Stations, Inc., 33 Misc 3d 1225(A) (2011)]

New York also adheres to the doctrine that "a publication defamatory of a place or a product is not libel against its owner unless the owner himself is accused of disreputable conduct" [El Meson Espanol v NYM Corp., 521 F.2d 737 (2d Cir 1975)].

Taking the above into account it seems that on the surface both plaintiffs have established a prima facie claim of defamation with injury to their business reputations as the defendant's Internet postings specifically mention Gardiner along with the business, Mr. Sandless. The next analysis is whether the statements of the defendant on the Internet are opinions and thereby protected speech not subject to a claim for damages.

It should be noted that New York recognizes a separate torts of defamation and disparagement of goods. Statements concerning a party's integrity or business methods form the [*4]basis of a defamation claim while statements denigrating the quality of a party's goods or services constitute disparagement of goods [Fashion Boutique of Short Hills, Inc. v Fendi USA, Inc., 314 F.3d 48 (2d Cir 2002)]. Plaintiffs did not plead a cause of action for disparagement of goods. An examination of the defendants on-line postings disclose that she is attacking the integrity of the plaintiffs and their business practices rather than the disparaging the product, so no cause of action for disparagement exists.

The courts have adopted a four part test to determine whether statements are protected opinion or unprotected assertions of fact [Ollman v Evans, 750 F2d 970 (DC Cir 1984) cert denied 471 US 1127 (1985)]. The four factors are (1) whether the statement has a precise meaning so as to give rise to a clear factual implication; (2) the degree to which the statements are verifiable, that is, objectively capable of proof or disproof; (3) whether the full context of the communication in which the statement appears signals to the reader its nature as opinion; and (4) whether the broader context of the communication so signals the reader.

The standard in New York for distinguishing protected expressions of opinion from actionable assertions of fact was clarified in Steinhilber v Alphons, 68 NY2d 283 (1986)]. The court noted:

A "pure opinion" is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be a "pure opinion" if it does not imply that it is based upon undisclosed facts. When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable. The actionable element of a "mixed opinion" is not the false statement itself-it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking.

The courts have been struggling with the application of the traditional analysis of defamation to the Internet. As noted in Sandals Resorts International Ltd v Google, Inc., 86 AD3d 32, 43 (2013), the culture of the Internet is characterized by a more freewheeling, anything-goes style of writing where bulletin boards and chat rooms may be the repository of a wide range of casual, emotive, and imprecise speech where the readers of the offensive statements do not necessarily attribute to them the same level of credence they would to statements made in other contexts. On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence. Many, if not, all of which exist in defendant's postings.

The defendant argues that she has a first amendment right to give her opinion of the plaintiffs. Courts are cognizant of the need to balance that cherished freedom of expression against the right of persons not to suffer damages as a result of defamatory comments.

In order to protect our prized First Amendment rights to free speech and press as well as debate on public issues, courts have insulated defendants from liability for stating opinions that another person was "immoral" and "unethical" (citations omitted) and for "lying, deceiving, [and] making false promises" (citations omitted).

[Rafkofsky v Washington Post, 39 Misc 3d 1226(A) (2013)]

Analyzing the three posts by the defendant, the court must decide whether they are "pure opinions" which are not actionable by the plaintiffs, or "mixed opinions" which are. Was the defendant upset about the job plaintiffs performed and just "blowing off steam" in her postings or was she intent on damaging the plaintiffs' business reputation? The defendant's actions and the post event timeline seems to lean to the conclusion the latter was her intent.

Clearly the initially posting on silive.com is not a "pure opinion" in that in it there are no facts presented in the post to support the defendant's statement "do not use mr sand less of staten island matt is his name he will destroy you floor he is a liar and a con artist beware." In this posting, the defamation is directed to plaintiff Gardiner and not the business. Defendant calls him a "liar" and "con artist." There are no specifics to support the allegations and from which a reader could determine whether there is a basis in fact for the statements as "destroy you[sic] floor" is too general to be considered the statement of a fact and indicates that the defendant has other information not being put forth in the posting. This qualifies as a "mixed opinion."

The first Yelp posting on March 4, 2015 also appears to be a "mixed opinion" and not a "pure opinion" as it does not disclose any facts from which a reader could evaluate defendant's statements for their truth. Defendant claims that Gardiner is a "scam" without reciting any specifics as to the "scam." The statement that she plans to go to court, might give a reader some belief that there is a legitimate basis for the defendant's complaints. However, it does not provide any facts to support her allegations.

The second Yelp posting on March 20, 2015 is "pure opinion" and is protected as it gives the reader some details as to why the defendant was dissatisfied and provides her email address to contact her for more information and offers to have persons interested come to her house to see the plaintiffs' work product. This posting is neither defamatory to the business, Mr. Sandless. Nor to Gardiner, although the defendant continues to seek to impugn Gardiner's integrity.

The above being said, considering at this point, March 20, 2015, the defendant had already commenced her small claims action on March 4, 2015, where any legitimate claims for damage to her floors would be resolved, the only reason to submit another posting was to damage plaintiffs' reputation.

New York also follows the "single instance rule." This provides where the defamatory statement charges the plaintiff with a single instance of misconduct in connection with the plaintiff's trade, occupation or profession, it is not actionable as defamation per se and the plaintiff must establish special harm arising from the statement [Amelkin v Commercial Trading Co., 23 AD2d 830 (1965)]. However, if the defamatory language charging only a single instance of misconduct imputes general incompetence, lack of integrity, or lack of fitness for the plaintiff's trade, office, profession or calling, the special harm requirement is obviated [November v Time Inc., 13 NY2d 175 (1963)]. Based on the facts of this case, the single instance rule is not applicable. Defendant was alleging misconduct in regard to plaintiff Gardiner's trade, occupation or profession which would cause potential customers of the plaintiff to avoid using his services. She referred to him as a "scam," "liar," "bullshitter," "con artist" and someone who "robs" you. Terms such as "scam" "con artist" and "robs" imply actions [*5]approaching criminal wrongdoing rather than someone who failed to live up to the terms of a contract. Had the defendant posted that the plaintiffs failed to do what they promised or that the floors did not turn out as she expected, she probably would not be a defendant in this litigation.

It must be concluded that the statements of the defendant about defendant Gardiner are actionable libel per se. They were personal in their invective and were designed to impugn his integrity and business practices with the intent to damage his business reputation. The statements as to the quality of the services performed by defendant Mr. Sandless are protected speech of a dissatisfied customer. They are referenced with some specific facts, the opportunity for others to contact the defendant directly and the possibility to visit her home and observe the refinishing themselves. Technovate d/b/a Mr. Sandless does not a have cause of action.

B. Are the Plaintiffs Entitled to Damages?

When a plaintiff establishes that the defendant's statements amount to defamation per se, there is no need to prove special damages. The law presumes that the making of the statement inflicts harm to the plaintiff's reputation entitling the defamed plaintiff to damages. Special damages, that is economic loss, arising from the publication of the defamation to third parties, must be proven in all cases were defamation per se is not applicable.

As stated above, the court has determined that the plaintiff Technovate has not been defamed by the defendant's statements. They were statements of opinion as to the quality of the work performed. Someone reading defendant's Internet posting could compare her statements to those made by other customers, many if not most, were positive and satisfied with Technovate's work and make there own decision on whether or not to use the company and its product.

Plaintiffs submitted documentation attempting to prove actual damages through the loss of income in March 2015 and April 2015 because of the defendant's postings [Liberman v Gelstein, 80 NY2d 429 (1992)]. Unfortunately, plaintiffs produced two statements from 2014 and none from 2015. Even if the 2015 statement was produced it would have little weight on the issue of damages because statements 2011 through 2013 show variations between monthly billings each year. In addition, the statements are not on a letterhead or in any other way described so as to be able to determine their purpose and accuracy. Plaintiff Gardiner had his self-serving testimony in regard to these issues. A better record might be copies of reports plaintiff prepared for the franchisor, Mr. Sandless, or quarterly sales tax returns, or some other document generated for a purpose other than the litigation. In any case, the loss of income would be for a claim by Technovate and not Gardiner as an individual and the court has determined Technovate was not defamed.

As to plaintiff Gardiner's damages, the court has determined that defendant's statements in regard to his honesty in business transactions qualified as defamation per se entitling him to general damages without proof of special harm. The amount of general damages in a defamation action must be supported by competent evidence concerning the injury, but there is no need to produce evidence which assigns an actual dollar value to the injury [Wolf Street Supermarkets v McPartland, 108 AD2d 25 (1985)]. The court finds that the general damages suffered by the [*6]plaintiff Gardiner amounts to $1,000.00. Based on the documentation submitted by the parties concerning the defendant's Internet postings, it does not appear that too many people are viewing comments about Mr. Sandless on either the silive or the Yelp website. Thereby limiting the harm Gardiner suffered to his reputation.

C. Should Plaintiff Be Licensed?

Neither plaintiff, Technovate nor Gardiner is licensed as a home improvement contractor pursuant to New York City Administrative Code (NYCAC) §20-386. Plaintiffs contend that they are not required to be licensed by the New York City Department of Consumer Affairs. The statute defines a "home improvement" as "the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement or addition" to a building used for residential purposes. Excluded from the definition is "painting" not incidental or related to a home improvement.

There is also a state law requiring licensing [General Business Law (GBL) Article 36-A]. Although the NYCAC does not refer to flooring, the state statute does. Because the both statutes are designed to protect consumers from unscrupulous business practices, the failure of the local law to specify "flooring" in its definition does not mean that the state law requiring licensing is inapplicable. A reading of both statutes leads to the conclusion that the type of improvements listed are not meant to be exclusive but are in fact examples of some of the work specifically covered. The failure to list something does not mean licensing is not necessary. The nature of the work determines whether it is a home improvement and not the label placed on it.

Based on the description of its services, Mr. Sandless is engaged in a home improvement and needs to be licensed. This is supported by the services offered on the "contract" which include "wood floor" and "carpentry."

It should be noted that the "contract" with the defendant is on a New Jersey billhead of Mr. Sandless and gives no information about Mr. Sandless of Staten Island such as a local address or telephone number. This information is available on the businesses website.

The fact that the plaintiff is not licensed and that the "contract" is for a New Jersey business and not the plaintiff, a Staten Island based franchisee, amounts to a deceptive business practice under GBL §349 entitling the defendant to damages. The extent of those damages is what is difficult to assess.

The court will not address the issue of whether the "contract" and the acknowledged acceptance of the work were signed by the defendant. She denies signing them and neither signature appears close to the signature on the affidavit accompanying the order to show cause in the small claims action. Although the signatures on the plaintiffs' "contract" appear to be closer to the defendant's signature on the Filippo Custom Carpentry contract.

In the past this court has on numerous occasions held that the failure of the business to be licensed prevents that business from collecting any money due to it on a breach of contract [*7]claim. Likewise, the court has denied recovery to any consumer seeking his or her money back once they learned that the contractor was unlicensed. The court has taken the position that because there was no license and the consumer failed to investigate the license status with the Department of Consumer Affairs, the agreement is illegal and the court will not enforce its terms leaving the parties without redress in the court system.

The court has allowed the consumer recovery when the unlicensed contractor actually caused physical damage to the property requiring remedial measures to correct the improper work. However, that work must be done by a licensed contractor in order to recover. The theory of recovery is based on negligence of the unlicensed contractor and not contract.

The problem in this action is that the defendant was dissatisfied with the work of the unlicensed contractor but that when she had the work corrected, she hired another unlicensed contractor, or at least his billhead does not indicate licensing, and no proof of Filippo being licensed was presented. Based on the description of what he observed and proposed to do, Filippo did work far beyond that of the plaintiffs. The corrective work was a traditional sanding and refinishing and not a "green" treatment of the floors. As a result the court cannot award her any actual damages in this regard. Any damages she suffered must be based on some other legal theory.

Under the statute, GBL §349(h), a consumer who is subjected to deceptive business practices, is entitled to actual damages or fifty dollars, whichever is greater as well as punitive damages not to exceed three times the actual damages up to one thousand dollars. She cannot collect the money she paid to plaintiffs as actual damages, because she hired an unlicensed contractor and lacked expert testimony to establish that the work was not properly performed by the plaintiffs. Likewise she cannot claim actual damages for the monies paid to Filippo because there is no showing he was licensed, his invoice does not describe the work he actually did, the rooms serviced or square footage, or any charge for materials and labor.

The court finds that each violation of the statute, not being licensed and using a New Jersey form for a New York entity entitles the consumer to a separate $50.00 award or a total of $100.00. In addition, punitive damages of $150.00 on each violation calculated as three times each $50.00 award. The total due from Mr. Sandless for violating the General Business Law is $400.00.

However, because the defendant did not file a counterclaim, this award cannot be made in the plaintiffs' civil court action. Neither can it be used as a set-off against the damage award assessed against her because that award is in favor of the individual plaintiff, Gardiner, on his defamation claim. This award to Fanelli is for the business entity, Technovate, LLC not comply with the General Business Law. The defamation claim of Technovate was dismissed.

D. Defendant's Small Claims Action.

Defendant's small claims action was amended to eliminate Gardiner as an individual defendant and to allow her to proceed against Technovate LLC d/b/a Mr. Sandless of Staten [*8]Island. This entity agreed to be the named defendant even though as noted above the "contract" between the parties is between the claimant and "Mr. Sandless" as a trademarked entity at an undisclosed address but with New Jersey telephone numbers and a statement that it services Morris and Union Counties.

The claimant is not entitled to be compensated for the work done by Filippo Custom Carpentry. There is no indication that he is a licensed contractor. In addition, the work he performed is totally different from the work Mr. Sandless performed. Filippo did a traditional floor stripping and refinishing which involved removing all of claimant's furniture from the rooms in question, and having her stay out of the house three days. At best, claimant would only be able to recover what she paid to Mr. Sandless, if the court accepted that it was not done correctly rather than she was just a dissatisfied customer. Expert testimony was needed to establish that the defendants in the small claims action breached the contract and its warranties. No expert testimony was presented. The narrative by Filippo on his invoice is not admissible evidence in that regard.

Further, the Filippo contract does not describe the floors that he redid, either by room or square footage. It does not distinguish between materials and labor. So it is not acceptable as proof of what work Filippo actually performed. The court cannot accept it as evidence.

Claimant's cause of action is dismissed on the merits. She has failed to prove her prima facie case.

However, as set forth above, the claimant has established that defendant, Technovate in this small claims action violated the General Business Law. She is entitled to $400.00 in statutory damages against Technovate in this small claims proceeding.

Conclusion:

Plaintiff Gardiner has established that he has suffered damages as a result from the per se defamatory statements posted by defendant Fanelli on-line. He is entitled to a judgment of $1,000.00 with interest from the date of judgment costs and disbursements.

Plaintiff Technovate, LLC d/b/a Mr. Sandless of Staten Island's cause of action for defamation is dismissed on the merits. Defendant's comments about the quality of the workmanship were opinion and protected speech.

Plaintiff Technovate is required to be licensed to perform the services it advertises. The failure to be licensed and the failure to use a contract form reflecting its true name and location are both violations of the General Business Law entitling the defendant to statutory damages of $400.00 to be awarded in the small claims action.

Claimant Fanelli's small claims action for breach of contract and defective repairs is dismissed on the merits. She has failed to prove her prima facie case. However, she did establish that the defendant, Technovate, LLC, violated the General Business Law and claimant is entitled to $400.00 with interest from the date of judgment, costs and disbursements.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated: September 10, 2015

Staten Island, NY

____________________________________

HON. PHILIP S. STRANIERE

Judge, Civil Court"

ON DEALING WITH CONTRACTORS (LICENSED OR NOT)

Kudos to Newsday for yesterday's story - but the bottom line is: maybe you should consult with a lawyer before you sign:

http://www.newsday.com/long-island/many-liers-pay-for-home-improvements-only-to-learn-costly-lesson-of-buyer-beware-1.10586461

INDICTMENT ON SUPERSTORM SANDY SCAM - UNLICENSED PLUMBER?

Some homeowners can only seek relief in civil litigation when dealing with issues with home improvement contractors. In this case dealing with a plumber and Sandy victims, the district attorney stepped in:

http://www.newsday.com/long-island/nassau/david-jensen-indicted-after-taking-money-from-superstorm-sandy-victims-without-doing-work-da-says-1.9228446

Plumbers and Electricians that operate in Nassau County, are licensed by the cities, towns and villages. For more information, contact the city, town or village directly.

MORE RE: UNLICENSED HOME CONTRACTORS

One of my blog posts that has had the most views and comments is from May 28, 2010 and can be found at this link:

https://www.blogger.com/blogger.g?blogID=3717763000184349948#editor/target=post;postID=4615810626068974929;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=3;src=postname

It deals with unlicensed contractors and many times I am asked by victims of unlicensed home contractors: what can I do, can I get them arrested?

It is the District Attorney that decides who to prosecute and of course the question is what motivates the DA to take action in one case as opposed to another. Earlier this month, the press reported about a Long Island man sentenced to 3 1/2 to 10 years in prison for stealing more than a half-million dollars from 13 Nassau County residents in a home-improvement scam and for putting up as collateral a property he didn't own. There were two different schemes apparently:

1.  In the first scheme in which he took money for residential and commercial improvements, the unlicensed contractor pleaded guilty to third-degree grand larceny and first-degree scheming to defraud.

2. In the second scheme, he used a property he did not own for collateral in a business deal, viz., he took $392,590 from a Long Island man, asked the victim to invest money into his business and then paid back only a small amount. There he pleaded guilty to second-degree grand larceny, also a felony.

From a reading of the article, it appeared that in the second scheme, involving one man, the defendant wrongfully obtained twice as much money as the first scheme which involved about a dozen different people.

MORE RE: UNLICENSED HOME CONTRACTORS

A blog post I started on May 28, 2010 had received numerous comments on this issue:

Friday, May 28, 2010 - UNLICENSED HOME CONTRACTORS

To add to that discussion, here is a story of the recent arrest of Nassau home improvment contractors for operating without a license and it appears the target of these arrests were contractors working on Superstorm Sandy victims:

ABC LOCAL - Nassau contractors busted for working unlicensed

NEWSDAY - Nassau: 61 unlicensed contractors nabbed in Sandy sting

UNLICENSED HOME IMPROVEMENT CONTRACTORS

An example of what could happen:

"
34 Misc.3d 43 (2011)
937 N.Y.S.2d 822
2011 NY Slip Op 21460

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JOHN STEPHENS, Appellant.

2009-2507 NCR.

Supreme Court, Appellate Term, Second Department.

Decided December 27, 2011.

44*44 Hofstra Law Clinic, Hempstead (Jacob L. Stevens of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.

MOLIA, J.P., TANENBAUM and LaCAVA, JJ., concur.

OPINION OF THE COURT

MEMORANDUM.

Ordered that the judgment of conviction is affirmed.

Defendant was charged with operating a home improvement business without a license in violation of Nassau County Administrative Code § 21-11.2 (as added by Local Law No. 6 [1970] of Nassau County). The ordinance provides that "[n]o person shall own, maintain, conduct, operate, engage in or transact a home improvement business after January first nineteen hundred seventy two, or hold himself out as being able to do so after such date unless he is licensed therefore pursuant to this title." Conspicuously absent from the ordinance is the requirement of a culpable mental state.

At the conclusion of the trial, defense counsel requested that the District Court instruct the jury that, in order to find defendant guilty of the charged offense, defendant must have acted either recklessly or negligently in failing to obtain a home improvement business license. Defense counsel also asked the District Court to charge the jury with the affirmative defense of entrapment by estoppel (Penal Law § 15.20 [2]). The District Court declined to issue either charge, and the jury found defendant guilty.

45*45 Contrary to defendant's contention, the District Court properly declined to charge the jury that the alleged offense requires proof of a culpable mental state. New York precedents have formulated the equivalent of a rational basis test to determine whether a criminal statute or ordinance which specifies only an actus reus imposes strict liability. This standard requires a court to discern whether there is a reasonable relationship between the purpose of the criminal statute or ordinance, along with the conduct it proscribes, and the "safety, health, morals or welfare" of the public (People v Munoz, 9 NY2d 51, 58 [1961]; see People v Campbell, 72 NY2d 602, 609 [1988, Bellacosa, J., dissenting]). A statute or ordinance will be found to impose strict liability when such a reasonable relationship exists.

Applying the aforementioned test to Local Law No. 6, we find that the District Court correctly declined to impute a culpable mental state to its language. With respect to the purpose of the provision, the preamble to Local Law No. 6 explicitly provides that "[i]t is the purpose of the Board of Supervisors in enacting this Local Law to safeguard and protect the homeowner against abuses on the part of home improvement contractors by regulating the home improvement, remodeling and repair business and by licensing of persons engaged in such business" (Nassau County Administrative Code § 21-11.0). Thus, the Board of Supervisors specifically intended that Local Law No. 6 protect the public from fraud, shoddy workmanship and other safety concerns attendant to unlicensed contractors.

Furthermore, in proscribing unlicensed contractors' engaging in home improvement work, Local Law No. 6 protects the public from the inherent harm in trusting their safety and property to nonlicensed individuals. As a result, Local Law No. 6 "specifies a strict liability offense not requiring any culpable mental state," and we choose to refrain from "rewrit[ing] the plain words of the statute by adding, through judicial gloss, a culpable mental state or new element not provided by the [Board of Supervisors]" (People v Nelson, 11 Misc 3d 126[A], 2006 NY Slip Op 50201[U], *2 [App Term, 1st Dept 2006]).

The District Court also properly denied defendant's request to charge the jury with the affirmative defense of entrapment by estoppel. Penal Law § 15.20 (2) states that

"[a] person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of 46*46 law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law" (emphasis added).

The "official statement of . . . law," however, "must in fact authorize the conduct in question; a reasonable belief that the statement authorizes such conduct is insufficient" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 125-126 [internal quotation marks omitted]; see People v Fraser, 96 NY2d 318, 326 [2001]). In this case, defendant failed to demonstrate that Village of Roslyn officials had authorized him to perform construction work on the complainant's home without the requisite home improvement business license. At most, defendant established that the Village had erred when it had issued him a construction permit based on inaccurate licensing information.

We note in passing that Municipal Home Rule Law § 10 (1) (ii) (a) (12) (b) has no bearing on the disposition of this appeal because the Village of Roslyn does not regulate the licensing of home improvement businesses.

Accordingly, the judgment of conviction is affirmed.

UNEMPLOYMENT INSURANCE - HEARING & APPEAL

Well every case starts with an employment and a termination. In this first case scenario: the Claimant was a home health aide - in the fall of 2008, a patient made a claim of physical abuse and a criminal complaint for endangering an incomptent person was filed. Claimant was immediately terminated.

UNLICENSED HOME CONTRACTORS

I have had this experience personally: an unlicensed home improvement contractor in New York City, Nassau and Suffolk County, and other surrounding counties, cannot sue homeowners for non-payment of its bills for services rendered or file a mechanic's lien, etc. This law was enacted to protect homeowners from unscrupulous construction contractors and its solicitors. Even where the homeowner knew that the contractor was unlicensed prior to the performance of the work, courts have still prevented the contractor from suing for payment, consistently holding that contracts made by unlicensed home improvement contractors are illegal and unenforceable. To determine whether a home improvement contractor is licensed, contact your county's Department of Consumer Affairs.

But what if you paid the contractor some money upfront? I made an upfront payment and no work was performed (it was a small job, only $300 was involved, but this proves that even attorneys make foolish mistakes). Certainly, one can sue in small claims or another court for a return of payment. But what are the chances of collecting on a judgment? Defendants who operate a business illegally usually hide assets, thus making enforcement of a judgment nearly impossible. What I did was contact the District Attorney's office and filed a complaint for operating a home improvement business without a license, a misdemeanor. The Nassau County District Attorney arrested the contractor and made a plea bargain deal (this took over a year) in which the contractor agreed to return my money - which the contractor never did. In fact, I am assuming that after the plea bargain was made, the contractor moved to another location as the District Attorney, after I advised them that the plea bargain payment deal was never complied with, advised me that they could not locate the contractor. But here is a story from July 21, 2009, North County Gazette:

"NASSAU COUNTY—A five-week investigation into unlicensed contractors in Nassau County has resulted in the arrest of 42 individuals.

Four face felony charges, including third degree grand larceny for allegedly stealing thousands of dollars from homeowners for improvements that were either not finished or never even started.

Investigators also rented a home in Nassau County and called in unlicensed contractors to perform “renovations.” The two-week operation yielded 12 charges of Operating a Home Improvement Business without a License, a misdemeanor, and the contractors’ vehicles were seized under the County Forfeiture Law. Twenty-six contractors were charged with the same misdemeanor after an investigation into complaints filed with Consumer Affairs.

The arrests were part of a multi-county enforcement sweep also executed in New York City and Westchester County.

“When you hire an unlicensed contractor, you’re rolling the dice,” Rice said, adding that consumers should thoroughly research home contractors before someone is hired. “Our homes are our most valuable financial asset and it is essential we entrust them to licensed, experienced professionals. Don’t let your American Dream become a nightmare.”

Facing felony charges are:

Derek Armstrong, 47 of Hempstead, was charged with second degree criminal possession of a forged instrument, falsifying business records and first degree offering a false instrument for. District attorney Kathleen Rice said Armstrong was hired by a Baldwin homeowner to do work on his home in 2005. Armstrong submitted the architect’s plans to the Town of Hempstead to obtain a permit, but the architect refused to work with Armstrong, who then put a different architect’s name and seal on the plans. The plans were also altered. He faces up to seven years in prison.

Edward Murphy, 42, of Wantagh, was charged with third degree grand larceny. Rice said Murphy was contracted to purchase backup generators for two group homes for autistic adults in Seaford and East Meadow. Murphy was paid $28,000, but never provided the homes with the generators or a refund. He faces up to seven years in prison.

John Napolitano, 47, of Hicksville, was charged with four counts of third degree grand larceny and first degree scheme to defraud. Rice said Napolitano defrauded four different homeowners of more than $113,000. Napolitano either took money and never performed any work at all or abandoned a project halfway through. One Long Beach homeowner had her entire kitchen demolished when Napolitano stopped work and didn’t refund her any money. He faces up to seven years in prison.

James Nichols, 46, of Rosedale, was charged with third degree grand larceny. Rice said Nichols received $47,500 from a homeowner to add an addition to his Elmont home. Nichols performed no work and did not refund the money. Nichols faces up to seven years in prison.

Charged with Operating a Home Improvement Business without a License in the house sting are Roberto Dopazo, 47, of Huntington; Donald Colucci, 57, of North Babylon; Jedidiah Irons, 22, of Oceanside; James Contrino, 33, of Oceanside; Debra Kaplan, 44, of Massapequa; George Brady, 55, of Queens; Manuel Vera-Munoz, 43, of South Farmingdale; Thomas Gallo, 48, of Levittown; Ronald Hinderhofer, 49, of Oceanside; Thomas Longo, 38, of North Merrick; Muzaffer Geyikgulo, 54, of Valley Stream; and Luis Saquipulla, 36, of Corona. All face up to a year in jail.

Working in conjunction with the Nassau County Department of Consumer Affairs, the following people were charged with Operating a Home Improvement Business without a License after complaints were lodged with Consumer Affairs by homeowners:

Thomas Gironda, 40, of Port Jefferson Station; Arthur Spero, 47, of Wantagh; Lionel Toby, 51, of Long Beach; Joseph Sarno, 69, of Bayside; Bohdan Kuzminskyy, 48, of Holbrook; Joseph Samaroo, 49, of Cedarhurst; Rod Darling, 41, of Hempstead; Christopher Martino, 39, of Lynbrook; Eladio Otero, 61, of Malverne; Yojin Choi, 44, of Great Neck; George Stern, 60, of Syosset; Nicholas Spano, 46, of East Meadow; Louis Hapst, 43, of Copiague; Ramadan Nela, 46, of Dix Hills; Russell Martini, 31, of Westbury; George Lopez, 40, of Oceanside; Edward Hoffman, 46, of Islandia; Anthony Delmaro, 37, of Deer Park; John Bradford, 44, of East Rockaway; Rulx Regala, 39, of Bohemia; Larry Field, 46, of Elmont; Christopher J. Galvin, 46, of West Babylon; Thomas Heaney, 42, of Farmingdale; Adolph Ford, 63, of Hempstead; Daniel Dallolio, 43, of North Bellmore; Joseph Sceppa, 39, of Commack. All face up to a year in jail."

DEALING WITH UNLICENSED CONTRACTORS

Yesterday, I was a volunteer attorney giving free 30-minute private consultations to Nassau County residents 65 years of age and over at the Nassau County Bar Association, 15th and West Streets, Mineola, NY. And one matter that came to me was a couple who contracted with an unlicensed contractor for the installation of some major equipment in their home. Although the warnings about dealing with unlicensed contractors have been many, still the attraction of low prices capture many into the trap. And usually, the work performed is substandard, not completed, unsafe, etc. The likelihood of suing for damages and collecting on a judgment is minimal: these contractors usually have no assets in their name, operate through shell corporations, etc. So again - DON'T DEAL WITH UNLICENSED CONTRACTORS. AND ASK LICENSED CONTRACTOR FOR A COPY OF THEIR INSURANCE BINDER AND THEN CALL THE INSURANCE COMPANY TO SEE IF IT IS STILL VALID. By clicking on the title above, the link will send you to a site on the NYC Department of Consumer Affairs website which explains what to do when you have dealt with unlicensed contractors and what to look for when you are seeking home improvement work.