VOO DOO CONTRACTING CORP v. PLUMBING HEATING CO INC

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Supreme Court, Appellate Division, First Department, New York.

VOO DOO CONTRACTING CORP., Plaintiff-Respondent, v. L & J PLUMBING & HEATING CO., INC., Defendant-Appellant.

Decided: August 26, 1999

ELLERIN, P.J., ROSENBERGER, BUCKLEY and FRIEDMAN, JJ. Ronald Cohen, for Plaintiff-Respondent. Ellen A. Bissett, for Defendant-Appellant.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered December 18, 1998, which granted plaintiff's motion for summary judgment, and directed defendant to return to plaintiff all sums previously paid, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint.

Plaintiff, Voo Doo Contracting Corp., a general contractor, hired defendant, L & J Plumbing & Heating Company, Inc., to supply labor and materials for certain plumbing work in connection with the construction of a shopping center.   At some point, plaintiff paid defendant approximately $135,000 for work that defendant had completed.

In this action seeking a return of all sums paid to defendant, plaintiff, on its motion for summary judgment, contended that it was entitled to return of its payments because defendant lacked the requisite master plumber's license to perform work in New York City (see, Administrative Code of City of N.Y. §§ 26-142, 26-138, 26-131).   Supreme Court concluded that summary judgment was warranted and directed that all sums paid to defendant be returned to plaintiff.

Although there is authority holding that the failure to hold a plumber's license as required by law precludes recovery for plumbing work performed in New York City (Fisher Mech. Corp. v. Gateway Demolition Corp., 247 A.D.2d 579, 669 N.Y.S.2d 347 [2d Dept.], lv. dismissed 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229;  but see, Matter of Migdal Plumbing & Heating Corp. [Dakar Developers], 232 A.D.2d 62, 662 N.Y.S.2d 106, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130), we have previously held that a licensing statute, such as the one at issue, may not be used “as a sword to recoup monies already paid in exchange for ․ unlicensed services” (Sutton v. Ohrbach, 198 A.D.2d 144, 603 N.Y.S.2d 857, citing, inter alia, Charlebois v. J.M. Weller Assocs., 72 N.Y.2d 587, 595, 535 N.Y.S.2d 356, 531 N.E.2d 1288).   Since this is precisely what plaintiff seeks to do in this action, its motion should have been denied and the complaint dismissed.

MEMORANDUM DECISION.