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Design Supply Marble and Granite, Inc. v. Mills

February 9, 2009

DESIGN SUPPLY MARBLE AND GRANITE, INC. D/B/A STONE SOURCE, PLAINTIFFS,
v.
PHILLIP R. MILLS, DEFENDANT.



The opinion of the court was delivered by: Jeffrey K. Oing, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Defendant, Phillip R. Mills, moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint.

Plaintiff, Design Supply Marble and Granite, Inc. D/B/A Stone Source, cross-moves, pursuant to CPLR 3126, for an order dismissing the counterclaims for defendant's failure to respond to plaintiff's notice for discovery and inspection, and failure to appear for an EBT. In the alternative, plaintiff seeks an order precluding defendant from offering evidence regarding the items contained in the discovery demands absent compliance with outstanding discovery demands.

Background

Plaintiff commenced this action to recover "for work, labor, services, and materials furnished at [defendant's] instance and request at 616 Amenia Road, Amenia, New York during the period from October 3, 2006 through June 21, 2007" (Moving Papers, Ex. 15). Plaintiff claims that the parties agreed on the price of $27,123.07 (Id.). Defendant paid $10,213.39, leaving a balance of $16,909.64 (Id.).

Defendant claims he contracted with plaintiff to supply and install countertops, backsplashes, and a shelf in the kitchen of his weekend residence as well as white onyx panels with plexiglass reinforcing in the ceiling of the expanded entry, a tub deck, shower thresholds and shower faceplates in one of the bathrooms (Mills Aff., 8/13/08, ¶ 2). The work was performed at the house that defendant uses as his weekend and vacation residence located in the Town of Stanford, Dutchess County, New York.

In support of the motion, defendant claims that plaintiff seeks to recover money based upon a home improvement contract which is unenforceable. Defendant argues that at the time of soliciting or entering into the contract, and since then, plaintiff did not hold the requisite license as a home improvement contractor from the NYC Department of Consumer Affairs.

NYC Administrative Code § 20-105 provides that:

It shall be unlawful for any person required to be licensed pursuant to the provisions of chapter two or pursuant to provisions of state law enforced by the [Department of Consumer Affairs] to engage in any trade, business or activity for which a license is required without such license.

NYC Administrative Code § 20-387 provides:

No person shall solicit, canvass, sell, perform or obtain a home improvement contract as a contractor or salesperson from an owner without a license therefor.

NYC Administrative Code § 20-386 defines "home improvement" as:

[T]he construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place .... "Home improvement" shall not include ... the sale of goods or materials by a seller who neither arranges to perform nor performs directly or ...


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