MICHAEL CANUSO CONSTRUCTION INC v. ROGERS (1999)

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (Henry, J.), dated April 27, 1999, which granted the plaintiff's motion to renew the defendants' prior motion to dismiss the complaint, which motion was granted by order of the same court dated March 4, 1999, and, upon renewal, denied the motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced the instant action, inter alia, to recover damages for breach of a home improvement contract.   The defendants moved to dismiss the complaint on the ground that the plaintiff was not a licensed home improvement contractor.   The legislative intent to protect residential homeowners places the burden unequivocally on the contractor to ensure that the license requirements are strictly complied with (see, Ellis v. Gold, 204 A.D.2d 261, 611 N.Y.S.2d 587;  George Piersa Inc. v. Rosenthal, 72 A.D.2d 593, 421 N.Y.S.2d 91).   We agree with the Supreme Court that whether the plaintiff was a licensed contractor is an issue of fact precluding summary judgment.   Thus, on renewal, it properly denied the defendants' motion.

MEMORANDUM BY THE COURT.