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Jocelyne Wildenstein v. 5h & Co

July 24, 2012

JOCELYNE WILDENSTEIN,
PLAINTIFF-RESPONDENT,
v.
5H & CO, INC., ET AL.,
DEFENDANTS-APPELLANTS.



Wildenstein v 5H&Co, Inc.

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 Official Reports.

Decided on July 24, 2012

Tom, J.P., Andrias, Catterson, Moskowitz, Roman, JJ.

Order, Supreme Court, New York County (Debra James, J.), entered on or about April 11, 2011, which, insofar as appealed from as limited by the briefs, denied defendants' motion to dismiss the first, sixth and eighth causes of action asserted against defendant 5H & Co., and all causes of action asserted against defendant Alex Stojanovic in his personal capacity, unanimously modified, on the law, to the extent of dismissing the first, second, sixth and eighth causes of action in their entirety and the fourth and ninth causes of action as against defendant Stojanovic only, striking plaintiff's demand for punitive damages, and otherwise affirmed, without costs.

Plaintiff hired the corporate defendant, 5H & Co., to perform renovations to her apartment. Pursuant to a contract, defendant was to render its services based on an hourly rate and plaintiff would reimburse it for expenses. Defendants provided an estimate as to how long it would take to complete the project, but the project ran into serious cost and time overruns. Plaintiff claims that defendant Stojanovic represented himself to be an architect and held out 5H & Co., his company, as qualified to perform the home improvement services plaintiff wanted. However, contrary to these representations, plaintiff claims that Stojanovic is neither a licensed architect in New York nor a licensed New York home improvement salesperson. Plaintiff further claims that defendants' work was defective or incomplete and that they left her with "uninhabitable living space."

The complaint sets forth nine causes of action, most of which are duplicative of the seventh cause of action for breach of contract. The first cause of action, against 5H & Co., seeks a declaratory judgment that the contract is void and unenforceable because 5H & Co violated Title 20, chapter 2, subchapter 22 of the Administrative Code of the City of New York § 20-387 that requires a contractor to obtain a home improvement license prior to entering into a home improvement contract or performing home improvement services. The second cause of action, against defendant Stojanovic, seeks a declaratory judgment declaring the contract void for violation of the same provision.

The third cause of action seeks to remove a mechanics' lien 5H & Co filed against the property. However, because defendants have removed the mechanics' lien, the court dismissed the third cause of action and it is not at issue on this appeal.

The fourth cause of action, for fraud, alleges that defendants intentionally misrepresented their qualifications and undervalued the cost and time to complete the renovation work. Attendant to this cause of action, plaintiff seeks punitive damages, attorneys' fees and penalties. Although plaintiff asserted fraud against both defendants, they appeal the denial of their dismissal motion as to this cause of action only to the extent plaintiff has directed it against defendant Stojanovic.

Plaintiff asserts the fifth cause of action, for conversion, against both defendants, but defendants appeal the denial of their dismissal motion as to this claim only to the extent plaintiff has asserted it against Stojanovic. Plaintiff claims defendants have retained certain items that belong to her in an attempt to extort more money from her.

The sixth cause of action asserts that both defendants were negligent in performing home improvement services by, inter alia, failing to obtain the necessary permits from the Department of Buildings and failing to sequence work properly, resulting in damage to plaintiff's personalty and necessitating additional work.

The seventh cause of action, for breach of contract against 5H & Co, also seeks a declaratory judgment that the contract is void and unenforceable. Defendants have not moved to dismiss this cause of action.

The eighth cause of action asserts professional malpractice against both defendants. The ninth cause of action, alleging trespass, asserts trespass against both defendants for allegedly entering into Apartment 51A while plaintiff was on vacation in Spain and demolishing the apartment. The ninth cause of action seeks punitive, as well as compensatory, damages. Defendants moved to dismiss the ninth cause of action as against defendant Stojanovic only. Although there are certain claims that defendants have not moved to dismiss as against 5H & Co., they have requested us to strike every demand for punitive damages.

To support her claim for fraudulent inducement, plaintiff alleges that, to induce her to enter a home improvement contract, Stojanovic misrepresented presently existing facts, including that he was a licensed architect, and that he and 5H & Co. were "qualified" and "licensed as architects or as home improvement contractors or salespersons." Even if defendant's misrepresentations were collateral to the contract, defendants correctly argue that plaintiff could not have reasonably relied on Stojanovic's misrepresentation of possession of the requisite licenses, as this circumstance is easy to verify through public ...


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