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First Department Appellate Division Brief Arguing Unlicensed Home Improvement Contractor is Not Due Fees

Appellant's Brief & Record on Appeal re Consumer Fraud / Home Improvement Contract

Oral Argument By:

Susan Chana Lask, Esq.

New York County Civil Court Clerk’s Index No.

01803 TSN 2000

_________________________________________________________________

__________________________________________________________

New York Civil Court

APPELLATE TERM----FIRST DEPARTMENT

----------------------------------------------------------------------------------------

______________________________________________

ALTERED STRUCTURE, INC. & MICHAEL DESANTO

D/B/A/ ALTERED STRUCTURE

 

 

,

Plaintiff-Appellee,

-against-

JANE DOE

 

 

,

Defendant-Appellant.

________________________________________________________________

BRIEF FOR DEFENDANT-APPELLANT

_____________________________________________________________________

LAW OFFICES OF

SUSAN CHANA LASK

Attorneys for Defendant-Appellant

853 Broadway, Suite 1516

New York, New York 10003

(212) 358-5762

_____________________________________________________________________________________________

_____________________________________________________________________________________________

TABLE OF CONTENTS

Page No.

I. QUESTIONS PRESENTED............................................................. 1

II. NATURE OF THE CASE.............................................................. 2-3

III. ARGUMENT............................................................................................... 3

A. THE LOWER COURT ERRED AS A MATTER OF LAW TO ALLOW A

HOME IMPROVEMENT CONTRACTOR TO PRESENT ITS CASE AT TRIAL

SOLELY AS A BREACH OF CONTRACT ACTION WHEN A WRITTEN

CONTRACT DID NOT EXIST ..................................................... 3-4

i. A Contractor that Fails to Provide a Homeowner with a Written

Contract as Mandated by General Business Law §771 Can

Only Plead and Present at Trial a Quantum Meruitt Cause of Action,

Not a Breach of Contract Action......................................................... 4

ii. The Lower Court’s Decision Must be Reversed and the Case Dismissed

Because the Contractor Never Proved Any of the Elements of a

Quantum Meruitt Cause of Action................... 4-6

B. THE LOWER COURT’S DECISION MUST BE REVERSED AND THE

CASE DISMISSED AS PLAINTIFF CONTRACTOR NEVER PROVIDED

EVIDENCE TO PROVE THE REASONABLE VALUE OF HIS SERVICES...... 6-8

C. THE LOWER COURT’S MISAPPLICATION OF THE LAW BY LIMITING

THE CASE TO BREACH OF CONTRACT CAUSED THE COURT ITSELF

TO BE CONFUSED AND PREJUDICED THE DEFENDANT

FROM PRESENTING HER CASE...................... 8-11

D. PLAINTIFF ALTERED STRUCTURE INC WAS NOT LICENSED AND MUST

BE DENIED ANY RECOVERY AS AN UNLICENSED CORPORATION CAN

NOT ACT AS PLAINTIFF NOR RECOVER UNDER THE JUDGMENT........... 11-13

E. PLAINTIFF “DESANTO D/B/A ALTERED STRUCTURE” WAS NOT

LICENSED AND CAN NOT BE A PLAINTIFF NOR RECOVER

UNDER THE JUDGMENT....................................................... 13

IV. CONCLUSION............................................................................................... 13

TABLE OF AUTHORITIES

CASES CITED PAGE(S)

Bauman Assocs. v. H & M Intl. Transp.

171 A.D.2d 479, 484, 567 N.Y.S.2d 404.................................................. 5,7

Bronold v. Engler,

194 N.Y. 323, 87 N.E. 427........................................................................ 12

Donohue v. Minicucci

174 A.D.2d 1013, 572 N.Y.S.2d 171 (4th Dep’t, 1991)........................... 8

Frank v. Feiss,

266 A.D.2d 825, 698 N.Y.S.2d 363 (4th Dept, 1999)........................ 4

George Piersa, Inc. v. Rosenthal,

72 A.D.2d 593, 421 N.Y.S.2d 91.................................................................... 11

Geraldi v. Melamid

212 A.D.2d 575, 622 N.Y.S.2d 742 (2d Dep’t, 1995)............................. 7

Hammerman v. Jamco Indus.,

119 A.D.2d 544, supra, 500 N.Y.S.2d 718.............................................. 12

Harter v. Krause,

250 A.D.2d 984, 986-987, 672 N.Y.S.2d 545 ................................... 4

Lehrer McGovern Bovis, Inc. v. New York Yankees,

615 N.Y.S.2d 31, 207 A.D.2d 256 (N.Y.A.D. 1 Dept.,1994)............... 5

Leroy Callender, P.C. v. Fieldman,

676 N.Y.S.2d 152 (App. Div. 1st Dep't 1998)..................................... 4

Lewis v.Barsuk

55 A.D.2d 817, 389 N.Y.S.2d 952 (4th Dep’t, 1976)................................ 6

Millington v. Rapoport,

98 A.D.2d 765, 469 N.Y.S.2d 787............................................................. 12

Mindich Developers v. Milstein,

227 A.D.2d 536, 642 N.Y.S.2d 704.................................................... 4

Moors v. Hall,

143 A.D.2d 336, 337-338, 532 N.Y.S.2d 412........................................... 5

TABLE OF AUTHORITIES (CONT’D)

CASES CITED PAGE(S)

Najjar Indus. v. City of New York

87 A.D.2d 329, 331-332, 451 N.Y.S.2d 410,

affd.

 

68 N.Y.2d 943, 510 N.Y.S.2d 82, 502 N.E.2d 997.................................... 5

Paolangeli v. Thaler,

187 A.D.2d 881, 590 N.Y.S.2d 316 (3rd Dept,1992)....................................... 7

Papadopulos v Santini,

159 AD2d 335, 552 NYS2d 611 (1st Dept, 1990)....................................... 12

Sturtevant v. Fiss, Doerr & Carroll Horse, Co.,

173 A.D. 113, 159 N.Y.S. 399 (1st AD, 1913).......................................... 7

U.S. East Telecommunications, Inc. V. US West Communications Services, Inc.,

38 F.3d 1289 (2d District, 1994).................................................................... 7

Vitanza v. City of New York,

367 N.Y.S.2d 820........................................... 12

William Conover, Inc. v. Waldorf,

251 A.D.2d 727, 673 N.Y.S.2d 770.................................................... 4

Wexler v. Rust,

144 A.D. 296, 128 N.Y.S. 977............................................................. 12

STATUTES

General Business Law § 771..................................................................... 4,11

I. QUESTIONS PRESENTED

1. Did the Lower Court commit reversible error under the law by allowing the

Plaintiff contractor’s case to proceed solely on a breach of contract

theory when no written contract existed?

2. Must the case be dismissed if the Plaintiff Contractor never pled nor

proved at Trial any of the elements of quantum meruitt?

3. Did Plaintiff contractor provide sufficient evidence that his invoices were valid

under a quantum meruitt cause of action?

4. Can a corporate plaintiff that is not a licensed contractor with the City recover in a

quantum meruitt case?

II. NATURE OF THE CASE

Defendant-Appellant Doe (“Doe”) hired Plaintiff-Respondent DeSanto (“DeSanto”) to

provide home improvement work at her premises. R.88. DeSanto never provided a written

contract pursuant to GBL §771 mandating written contracts for home improvement work.

R.88,104. DeSanto commenced work at Doe’s premises on or about January 28, 1998. R.6,19.

DeSanto took advance payments from Doe months before he invoiced for work performed. R.

127. Those advance payments were made by checks payable to “Mr. Michael Desanto” on

January 28, 1998 for $2,000.00, February 19, 1998 for $2,000.00, February 19, 1998 for

$2,000.00 and a check made payable to “Altered Structure” on March 16, 1998 for $4,225.00,

totaling $10,225.00 in advance payments. R.188-192.

On or about March 16, 1998, about three months after receiving Doe’s advance

payments, DeSanto submitted a handwritten invoice named “Invoice #1” that listed general work

and a grand total for each listing. R.183. Additional payments of $10,500.00 were made by Doe

to DeSanto from May 8, 1998 through June 1, 1998. R.187. After said additional payments,

DeSanto submitted Invoice #2 covering the period March 16 through June 1, 1998, again

generally listing work with a grand total to the right of each listing. R.184. DeSanto then

submitted a handwritten Invoice #3 containing general listings of “kitchen renovation.....$6,000,

Bathroom Renovation....$6,500, Extras s/s work, closet work, window repair...$1,175”,

requesting an additional $13,550.00 from Doe. R.185. On or about August 7, 1998 DeSanto

submitted Invoice No. 4 called “Extras” generally listing some 12 items with totals by each item,

requesting an additional $7,800.00. R.186.

On or about November 24, 1998 suit was filed by Plaintiff Altered Structure, Inc., and

later Plaintiff Michael DeSanto d/b/a Altered Structure was added as a Plaintiff, alleging breach of

contract to recover $21,350.00. R.5-9, which is the total of Invoices #3 and #4. R.101. Doe

answered that the invoices were inflated, charged for work not agreed upon and charged for

work paid for in advance. R. 16. At trial, Plaintiffs’ presented its case solely as a breach of

contract cause of action. R.87,88, and presented one witness, a Michael DeSanto as the

principal of Plaintiff Altered Structure, Inc. R.88. Neither Plaintiff “Altered Structure, Inc.” nor the

Plaintiff named “Michael DeSanto d/b/a Altered Structure” were licensed contractors; the only

license produced at trial was for a person named Michael Desanto, who was not a named party

to this action. R. 167. The court never received direct testimony nor evidence from any of the

named Plaintiffs nor from the witness who appeared as principal for Plaintiff Altered Structure,

Inc. regarding the reasonable value of services invoiced, nor was evidence submitted to

substantiate the handwritten invoices. R.91-105. Doe established at trial during her

cross-examination of witness Desanto that Invoices #1-4 double-billed her for work already paid

for as DeSanto’s March, 1998 Invoice #1 charged $4,000.00 to “skin walls, compound smooth”

then Invoice #4 in August, 1998 charged for the same work. R. 112-113. Plaintiff also

established during her cross that DeSanto had no explanation as to why there were invoices

covering work that was invoiced for months before those invoices, wherein DeSanto’s testimony

was “I don’t know, you know, because it showed up later. I don’t know.” R.113.

The court proceeded on the case as solely a breach of contract issue stating to

Defendant that “If you can prove your case, that he did not do this work, then you are going to

win. If you can’t, then you are going to lose.” R.139. The court refused to accept Defendant’s

testimony that the invoices were not itemized and chronically interrupted her case. R. 133-149.

After the trial the lower court’s judgment was “rendered in favor of Plaintiff” for the full amount of

Plaintiff’s invoices submitted at $21,350.00, plus interest. R.4.

III. ARGUMENT

A. THE LOWER COURT ERRED AS A MATTER OF LAW TO ALLOW A

HOME IMPROVEMENT CONTRACTOR TO PRESENT ITS CASE AT TRIAL

SOLELY AS A BREACH OF CONTRACT ACTION WHEN A WRITTEN

CONTRACT DID NOT EXIST

Plaintiffs’

 

 

1

opening statement at trial was “This is a breach of contract action”.R. 87, 88.

Plaintiffs’ further insured the evidence would be limited to a breach of contract action, stating:

“We are going to present evidence to establish that the Plaintiff entered into

an agreement with the Defendant to render construction services at her

residential property. The Plaintiff performed the services as requested, was

partially paid, and a dispute arose to the effect that my client left without

receiving full payment for the services that he did render.” R. 88.

Plaintiff’s complaint was limited solely to a breach of contract cause of action.R.5-8. Consistent

with its pleadings and opening statement, Plaintiff limited its testimony and proof at trial solely to

a breach of contract action wherein Plaintiff attempted to prove an offer, acceptance,

consideration and damages being nonpayment. Apparently proving an offer, Plaintiff testified that

there was an agreed upon price of $60-80,000.00. R.95. Apparently proving an acceptance,

Plaintiff testified that he started work a day after the offer R. 95. and he received $20,725.00 from

Plaintiff. R. 99. Apparently proving damages, Plaintiff testified he was not paid an additional

$20,725.00 for work he completed listed in its invoices 3 and 4. R.100-101;104. Plaintiff’s

testimony would have fared well for the breach of contract action that Plaintiff limited itself to but

for the fact that no written contract existed between the Plaintiff Contractor and the Defendant

Consumer. R. 104 and pursuant to General Business Law §771 a written contract must exist to

sustain a breach of contract cause of action.

1

 

The term “Plaintiffs” or “Plaintiff” are used interchangeably for convenience of the initial arguments as this

Brief will later conclude in sections D and E herein that there actually was no Plaintiff at all since the named

Plaintiffs were unlicensed and by law could not recover and the only witness testified on behalf of himself as

an individual who was not a named Plaintiff.

 

i. A Contractor that Fails to Provide a Homeowner with a Written

Contract as Mandated by General Business Law § 771 Can

Only Plead and Present at Trial a Quantum Meruitt Cause of Action,

Not a Breach of Contract Action

General Business Law §771 (“GBL”) mandates that all home improvement contracts

shall be in writing and contain certain terms of payment, fees for services and materials and

start and completion dates, among other terms. GBL §771 is a consumer protection statute to

prevent the very misunderstandings that occurred in this case and to protect the consumer from

overreaching of the contractor, such as charging for work that was not agreed upon.

GBL §771 limits the contractor who disregards its written contract requirements to

pleading and proving a quantum meruitt cause of action

 

 

(

Leroy Callender, P.C. v. Fieldman, 676

N.Y.S.2d 152 (App. Div. 1st Dep't 1998); Frank v. Feiss, 266 A.D.2d 825, 698 N.Y.S.2d 363 (4th

Dept, 1999); William Conover, Inc. v. Waldorf, 251 A.D.2d 727, 673 N.Y.S.2d 770; Harter v.

Krause, 250 A.D.2d 984, 986-987, 672 N.Y.S.2d 545; Mindich Developers v. Milstein, 227 A.D.2d

536, 642 N.Y.S.2d 704

 

).

The contrator thus has the burden of pleading and proving the

reasonable value of his services--a burden that requires substantial proof. Since it has been

established that Plaintiff here solely based its pleadings and its case at trial on a breach of

contract theory and not quantum meruitt then the Appellate Term at this very juncture can rule in

Defendant’s favor by reversing the lower court’s holding and dismissing Plaintiff’s complaint;

however, to make a complete record and to establish the law in this department,

Defendant-Appellant proceeds for the court’s complete understanding.

 

ii. The Lower Court’s Decision Must be Reversed and the Case Dismissed

Because the Contractor Never Proved Any Of The Elements of a

Quantum Meruitt Cause of Action

In order to establish quantum meruitt a party must prove (1) the performance of the

services in good faith, (2) the acceptance of the services by the person to whom they are

rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the

services. (LehrerMcGovern Bovis, Inc. v. New York Yankees, 615 N.Y.S.2d 31, 207 A.D.2d 256

(N.Y.A.D. 1 Dept.,1994). Nowhere does the record show that the Plaintiff proved any of the four

elements of a quantum meruitt case. The record in fact is clear that the Plaintiff proceeded

solely on a breach of contract cause of action. R. 88. Plaintiff only testified that he commenced

work based upon an oral agreement and some of his services were not paid. Whatever work

Plaintiff claimed it performed had to be proven for each portion of work that (1) it performed the

services in good faith, (2) that the work was acceptable to Defendant, (3) that it expected

additional payments beyond what was received in advance from Defendant and notably Plaintiffs’

failed to plead (4), the fourth and crucial element of quantum meruitt, the measure of damages

which would be the reasonable value of services rendered.

Since no written contract existed in this case, then at most the Plaintiff had an oral

agreement with the Defendant to perform construction work at her premises. This Department

held in Leroy supra. that an oral agreement in a contractor case must rest on quantum meruitt

which requires the contractor to prove the reasonable value of its services. In that case, just as

this one, there were hotly disputed issues as to the scope of work agreed upon, scope of

additional work requested and factors in determining the plaintiff’s compensation. The Leroy

court held, and cases follow, that the measure of damages in quantum meruit is the reasonable

value of the labor and materials supplied by a plaintiff contractor (Bauman Assocs. v. H & M Intl.

Transp., 171 A.D.2d 479, 484, 567 N.Y.S.2d 404; Moors v. Hall, 143 A.D.2d 336, 337-338, 532

N.Y.S.2d 412; Najjar Indus. v. City of New York

 

 

, 87 A.D.2d 329, 331-332, 451 N.Y.S.2d 410,

affd.

 

68 N.Y.2d 943, 510 N.Y.S.2d 82, 502 N.E.2d 997). In the present case, Plaintiff simply submitted

invoices 3 and 4, R.185-186, to prove an amount due Plaintiff, but never once testified to nor

offered evidence as to the details of each invoice he claimed monies were due from nor

submitted any proof substantiating the reasonable value of those services. The Plaintiff simply

thrust unsubstantiated, unitemized handwritten invoices before the lower court at trial labeled

invoice numbers 3 and 4 and demanded payment.

B. THE LOWER COURT’S DECISION MUST BE REVERSED AND THE

CASE DISMISSED AS PLAINTIFF CONTRACTOR NEVER

PROVIDED EVIDENCE TO PROVE THE REASONABLE

VALUE OF HIS SERVICES

Contrary to the law, Plaintiffs submitted handwritten invoices with a general statements

and grand totals by each statement without any calculations or a breakdown of services on

those invoices. Plaintiffs’ invoices have the following handwritten notes R.185-186:

“Invoice #3 4-1-98 6-12-98

Kitchen renovation 6000

Bathroom renovation 6500

Extra

S/S work

Closet work

Window wall repair 1175

$13,675” R.185.

“Billing Invoice # 4- 8-7-98

1. Tile deliver 1800 lbs from Brookly(sic) 450

2. Wall repair from Plumbers 175

3. Bathroom door know installation 150

4. Kitchen Counter (unlegible) & material 1,500

5. S/s work labor 1,200

6. Paint bronze window trim 650

7. Miss order size stair rails cut & inst 350

8. Demo Book case bed & shelves 450

9. All electrical work 1200

10. Apartment wall compound from painter 1500

11. COD Tile Sealer 25

12. Simons Harware mark-up 150

$7800.00” R. 186.

Nowhere in those notes can it be discerned just what services were provided, how much

the cost for the services were, who performed the work, when and at what cost per hour or day

and how many hours the work involved. In Lewis v.Barsuk, 55 A.D.2d 817, 389 N.Y.S.2d 952

(4th Dep’t, 1976) the appellate term held that a contractor’s handwritten notes with grand totals

for work completed were insufficient to prove the reasonable value of each item of work pursuant

to an oral agreement as it did not show complete calculations for the labor. In order to establish

the reasonable value of services, the court should hear testimony regarding the nature, extent

and value of services rendered. Sturtevant v. Fiss, Doerr & Carroll Horse, Co.,173 A.D. 113, 159

N.Y.S. 399 (1st AD, 1913). A plaintiff must submit sufficient direct evidence to support the value

of his services in a quantum meruitt case. Geraldi v. Melamid, 212 A.D.2d 575, 622 N.Y.S.2d

742 (2d Dep’t, 1995)

 

 

;

Bauman(supra). In Geraldi (supra) the plaintiff failed to include values as to

the amount of services or to value the hourly, daily or weekly services rendered. The Geraldi

court held that failure to include any calculations regarding the reasonable value of services

voids any claim for quantum meruitt. In Bauman(supra) this department rejected the plaintiff's

quantum meruit claim because the plaintiff failed to specify the expenditures it made as well as

the reasonable value of the services performed. The Bauman court noted that the plaintiff

"merely assert[ed] in a conclusory, nonspecific manner" that it had performed services for the

defendant, and demanded the contract price, Id. at 484, and found that such evidence adduced

at trial did not support the lower court's determination that the plaintiff was entitled to recover in

quantum meruit for services rendered to the defendant. In the present case, Plaintiffs submitted

absolutely no evidence to the lower court to substantiate its general, unitemized invoices.

Sufficient evidence would include detailed invoices with corroborating testimony and

expert testimony for a contractor to prove the reasonable value of his services at trial when no

written contract exists. Some examples of evidence satisfying the courts are found in

Paolangeli v. Thaler, 187 A.D.2d 881, 590 N.Y.S.2d 316 (3rd Dept,1992) and U.S. East

Telecommunications, Inc. V. US West Communications Services, Inc., 38 F.3d 1289 (2d

District, 1994). In Paolangeli (supra) the court held a contractor satisfied his burden of proof in

quantum meruitt cases by providing invoices detailing daily records of equipment used, the

number of equipment used and the hours of use. In U.S. East Telecommunications (Supra) the

court determined that a contractor sufficiently proved the reasonable value of its services by

providing invoices detailing the summary of each employees hours worked on the job, the hourly

rate of pay, and supplemented that proof with timesheets for each employee. Additionally, the

contractor there provided testimony corroborating each invoice and provided documentary

evidence of three federal agencies stating the contractor’s work was competent.

In this case Plaintiff failed to plead or present any evidence at trial supporting the

reasonable value of its services to recover on a quantum meruitt action. Plaintiff failed to prove

its case because Plaintiff established at trial that it would proceed solely on a breach of contract

theory R. 87,88, and not a quantum meruitt action as mandated by law. Plaintiff never satisfied

its burden of proof nor did it intend to satisfy it. The lower court’s decision must be reversed and

the case dismissed.

 

C. THE LOWER COURT’S MISAPPLICATION OF THE LAW BY LIMITING

THE CASE TO BREACH OF CONTRACT CAUSED THE COURT ITSELF

TO BE CONFUSED AND PREJUDICED THE DEFENDANT

FROM PRESENTING HER CASE

The record shows the lower court was confused itself by accepting Plaintiffs’ cause of

action as a breach of contract only. The lower court completely ignored the Plaintiff’s burden of

establishing a quantum meruitt action as required by law. It wrongly placed the burden of proof

upon the Defendant, limiting the issues as to whether the contractor completed work or not.

That was an impossible burden because Plaintiffs’ invoices were so general without any

breakdown or explanation that Defendant had no starting point to disprove anything in the

unitemized invoices; thus, the very reason the law exists that the burden of proof is upon the

contractor to evidence itemized bills so a Defendant has something to respond to in a court of

law. Moreso, the extent of prejudice upon Defendant has been the law in the lower court from

the start of this case by the lower court proceeding upon Plaintiffs’ complaint that limited the

issues to a contract cause of action when it was not such an action. In Donohue v. Minicucci,

174 A.D.2d 1013, 572 N.Y.S.2d 171 (4th Dep’t, 1991) the appellate court reversed a judgment

against defendant and dismissed an plaintiff attorney’s complaint for fees due, holding that the

plaintiff’s failure to plead quantum meruitt prejudiced the defendant at trial by not alerting the

defendant to counter with evidence as to the reasonable value of services

 

 

.2

The extent of

prejudice done to a Defendant when a plaintiff pleads a wrong cause of action and then further

2

 

The Plaintiff in that case notably also failed to submit proof of reasonable value of its services.

 

limits its proofs at trial to the wrong pleading is cause for any judgment based upon such

prejudice to be dismissed.

Nevertheless, the lower court in this case did not understand the law so the Defendant

had no choice but to attempt to prove Plaintiffs’ invoices were unreasonable and general.

Naturally, since the court did not understand the proper application of the law, it became

frustrated, interrupting the Defendant’s case and limiting her to “let’s prove that you paid the bills,

or not paid the bills”, R.129, or when she tried to establish whether the bills reflected payments to

date the court interrupted her again, “Are we ready to go on your case, otherwise we are going to

be here until tomorrow on your questions?” R. 129-130. Defendant explained to the court that

she wanted to establish that she did not receive itemized bills and the court again interrupted by

this time going off the record and upon returning on the record Defendant’s whole line of

questioning regarding itemization was abandoned. R.130-132.

A review of the record shows much frustration by the court which was created by its own

misapplication of the law. If it would have limited the case to quantum meruitt and not a breach

of contract cause of action then the court would not have been frustrated whenever Defendant

rightfully attempted to prove the elements of quantum meruitt. The Defendant each time focused

on the issue of the reasonable value of Plaintiffs’ work as reflected by its general, unitemized bills

yet the court stopped Defendant’s case. The court’s misunderstanding and frustration is very

clear when it tells Defendant to present her case as “...you just tell us why you think you should

not have to pay the money.” R. 132, or during Defendant’s case the court interrupted numerous

times misdirecting her flow of the case and directing her to prove that if work was completed

then Defendant must pay for it, stating: “That’s what we are looking at because if he was

involved then he can charge you for it.” R. 134. But that is not the case, the case under quantum

meruitt is whether the invoices were valid when there was no written contract and the Plaintiffs’

had the burden of proving that, not the Defendant.

The court further limited Defendant’s case by interrupting and telling her that if she did not

have a bill from another contractor that indicates they did work listed on Plaintiffs’ invoices then

Defendant can not prove her case. R. 135. That was completely a wrong direction by the court

as there was no way Defendant could delineate Plaintiffs’ general listings of “kitchen renovation,

bathroom renovation and extras” unless Plaintiffs’ provided an itemized bill because there was

no written contract. Defendant tried numerous times to present her case that there was no

itemization for Plaintiffs’ invoices, stating “I do not have any itemization from the Plaintiff about

what the renovation entailed..” R. 134, “...kitchen renovation, what’s the itemization for it?” R.

136. She was on the right track attempting to prove her case that the invoices were improper for

being unitemized but the court was so confused by forcing a contract cause of action when

there was no contract and only unitemized bills existed that its confusion was made clear when

it stated “And I don’t know what the detail is, but--what else in the kitchen?” and “I don’t know if

you need a breakdown, get a breakdown.” R. 138. Clearly the court could not even establish

itself just what Plaintiffs’ invoices represented so the court for pages on end allowed numerous

interjections by the Plaintiff and itself interrupted Defendant while she tried to present her case.

R.138-146. The most telling of the court’s misapplication of the law to Defendant’s prejudice

was when it stopped her case and directed her to make a burden of proof that was not required

under the law:

“THE COURT: You have an option of moving forward, taking the decision,

winning or settling...If you can prove your case, that he did not do this work,

then you are going to win. If you can’t, then you are going to lose.

The fact that you made a mistake and did not get a rundown, or whatever it is--

DOE: He kept billing me and telling me--billing me for things that were already

paid for.

THE COURT: You have to prove that.” R.139

Defendant did not make a mistake; the law is clear under GBL §771 that the Plaintiffs’ unlawfully

provided home improvement services without a written contract and then submitted unitemized

general invoices that could not pass under a quantum meruitt cause of action.

Contrary to the court’s direction that the Defendant must prove that the contractor did not do the

work to win, the proper direction was for the court to direct Plaintiffs to prove the reasonableness

of its invoices, which Plaintiffs never proved. In fact, Defendant had no burden of proof at all

once the contractor Plaintiffs rested their case and failed by law to prove the reasonableness of

their invoices. The case should have been dismissed at that point and in no way should there

have been a judgment granting the total of unproven invoices.

D. PLAINTIFF ALTERED STRUCTURE INC WAS NOT LICENSED AND MUST

BE DENIED ANY RECOVERY AS AN UNLICENSED CORPORATION CAN

NOT ACT AS PLAINTIFF NOR RECOVER UNDER THE JUDGMENT

The lower court’s judgment was “rendered in favor of Plaintiff” for the full amount of the

invoices submitted at $21,350.00, plus interest (R.4) . The “Plaintiff” listed in the case caption

are two, “Altered Structure, Inc. and Michael DeSanto d/b/a Altered Structure”. The only person

who testified that they were licensed was a Michael DeSanto who testified as the principal of

Altered Structure Inc. R. 90; there was no license produced for Altered Structure, Inc. R.167. By

law, the lower court’s judgment can not be in favor of an unlicensed contractor. Altered

Structure, Inc. was not licensed and can not recover nor be a Plaintiff in this case. The law is

clear that if a company is not a licensed contractor than it can not recover for any work

performed, even if its president is licensed and even if the homeowner knew the entity was

unlicensed. George Piersa, Inc. v. Rosenthal, 72 A.D.2d 593, 421 N.Y.S.2d 91 (recovery denied

to unlicensed corporation even though president was licensed).

Plaintiffs’ case was further flawed by never introducing a witness to testify on behalf of

any of the name Plaintiffs. The only witness introduced by Plaintiffs was a Michael DeSanto who

testified on behalf of Altered Structure, Inc as introduced by Plaintiffs’ counsel, “I am going to

present only one witness today, and that will be the principal, Michael Desanto.” R.88. The

principal of the unlicensed corporation testified for that corporation as the Plaintiff, not for Michael

Desanto d/b/a Altered Structure. In fact, no evidence was produced that Altered Structure was a

valid company licensed to do business in New York State, only that a Michael DeSanto was a

licensed contractor. R. 90. The only evidence of any connection with New York was Plaintiffs’

introduction into evidence of a license granted to a Michael Desanto individually, not to a Plaintiff

named “Altered Structure , Inc.” or “Michael DeSanto d/b/a Altered Structure” R. 167.

New York has taken a strict approach in this area of the law and our "courts have been

adamant in their refusal to permit recovery under a contract * * * where the contractor is not

licensed" (Vitanza v. City of New York, supra, at 44, 367 N.Y.S.2d 820; Bronold v. Engler, 194

N.Y. 323, 87 N.E. 427 [recovery denied to unlicensed plumbing firm even though firm's manager

was licensed], Papadopulos v Santini, 159 AD2d 335, 552 NYS2d 611 (1st Dept, 1990) (failure

of professional to obtain required license renders whole agreement void and the unlicensed

provider of services could not recover on any basis of work performed), Wexler v. Rust, 144 A.D.

296, 128 N.Y.S. 977 [recovery denied to unlicensed plumbing contractor even though it used a

licensed subcontractor]; Hammerman v. Jamco Indus., 119 A.D.2d 544, supra, 500 N.Y.S.2d

718 [recovery denied to unlicensed corporation even though president, as architect, was exempt

from license requirement]; Millington v. Rapoport, 98 A.D.2d 765, 469 N.Y.S.2d 787 [recovery

denied even though homeowner knew that contractor was unlicensed]. Thus, Plaintiff Altered

Structure was an unlicensed entity and can not maintain an action against Defendant Doe nor

can it be a named party in the judgment.

E. PLAINTIFF “DESANTO D/B/A ALTERED STRUCTURE” WAS NOT

LICENSED AND CAN NOT BE A PLAINTIFF NOR RECOVER UNDER

THE JUDGMENT

The remaining Plaintiff is “Michael DeSanto d/b/a Altered Structure”. As evidenced

above, there was no witness on behalf of Plaintiff “Altered Structure, Inc.” and there was no

witness introduced on behalf of a Plaintiff named “Michael Desanto d/b/a Altered Structure”.

Michael DeSanto testified solely as to his being a principal of Altered Structure, Inc. R.88. At no

time did Plaintiff introduce testimony for the entity “Michael DeSanto d/b/a Altered Structure”, nor

was there any evidence admitted by Plaintiff that such an entity properly existed in this State. In

following the law as stated above, since there was no license introduced for Plaintiff “Michael

DeSanto d/b/a/ Altered Structure” then that Plaintiff also can not recover

 

 

.

The only person

licensed was a Michael DeSanto who was not a named Plaintiff; therefore, the whole case

should be dismissed as the Plaintiffs’ claiming to recover were unlicensed contractors and the

law does not allow recovery to unlicensed persons or entities.

IV. CONCLUSION

Plaintiffs failed to prove a quantum meruitt case, the lower court’s decision must be

reversed and Plaintiffs’ complaint should be dismissed in its entirety. Also, as named Plaintiffs

Altered Structure, Inc. And “Michael DeSanto d/b/a Altered Structure” did not have a license in

those names nor evidenced the validity of a “dba” named Altered Structure then any judgment

with respect to those unlicensed entities must also be reversed.

Dated: New York, New York

April 9, 2004 Yours, etc.,

______________________

Susan Chana Lask, Esq.

Attorney for Defendant-Appellant

853 Broadway, Suite 1516

New York, NY 10003

(212) 358-5762