HAMPTONS LANDSCAPING SERVICE INC v. SHERMAN (2017)

The plaintiff Hamptons Landscaping Service Inc., (hereinafter “Hamptons”) moves seeking summary judgment to recover $17,217.00, from the defendants Michael & Frances Sherman (hereinafter “the Shermans”);  asserting breach of contract and unjust enrichment causes of action.

The Shermans have cross moved seeking an order dismissing Hampton's 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 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 $14,660.00 of additional services.

 The law is well settled that a home improvement contractor may not recover upon a breach of contract or quantum merit cause of action in the absence of procuring a home improvement license.  See Ellis v. Gold, 204 A.D.2d 261, 611 N.Y.S.2d 587 (N.Y.A.D. 2nd 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 Contracting Ltd. v. Kirschenbaum, 73 A.D.3d 1163, 902 N.Y.S.2d 589 (N.Y.A.D. 2nd 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 New York CPLR Sec. 3015(e) and par. # 2 of complaint.

 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 N.Y.2d 895, 289 N.Y.S.2d 411, 236 N.E.2d 639 (N.Y.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 Building Corp. v. Liebig, 76 N.Y.2d 689, 563 N.Y.S.2d 40, 564 N.E.2d 650 (N.Y.1990).  In the case as bar the contractor did have both the Suffolk & 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 $14,660.00 of post license work be disallowed.

The Court therefore grants the plaintiffs 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.

Settle Judgment upon Ten (10) days notice.

C. STEPHEN HACKELING, J.