WESTCHESTER STONE SAND AND GRAVEL INC v. MARCELLA (1999)

In an action to recover damages for breach of an oral contract, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Rosato, J.), dated September 16, 1998, which, upon an order of the same court, entered July 14, 1998, granting the respondents' motion to dismiss the complaint insofar as asserted against them pursuant to CPLR 3015(e) and CPLR 3211(a)(7), is in favor of the respondents and against it.   The notice of appeal from the order is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] ).

ORDERED that the judgment is affirmed, with costs.

The Administrative Code of the County of Westchester is applicable in this case, since by performing home improvement work on the respondents' home in Westchester County, the plaintiff was clearly “conduct[ing]” or “engag[ing]” in a home improvement business there (Administrative Code of County of Westchester § 863.313).   Even assuming that the respondent James J. Marcella may have been employed himself as a contractor or a builder, that fact would not render the code inapplicable to this situation.   Inasmuch as the complaint does not allege that the plaintiff was licensed under the Administrative Code of the County of Westchester, the Supreme Court properly granted the respondents' motion to dismiss the complaint insofar as asserted against them (see, CPLR 3015[e]:  CPLR 3211[a][7];  see also, Cappadona v. Salman, 228 A.D.2d 632, 646 N.Y.S.2d 27).

MEMORANDUM BY THE COURT.