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Carrea & Sons, Inc. v. Hemmerdinger

City Court of Rye

November 25, 2013

Carrea & Sons, Inc., Plaintiff,
v.
Elizabeth Hemmerdinger and DALE HEMMERDINGER, Defendants.

Plaintiff by Stanley E. Esposito, Esq., Pleasantville, NY

Defendant by Colin Kaufman, Esq., Adam Leitman & Bailey, P.C., NY, NY

Joseph L. Latwin, J.

This is an action for work, labor, services and materials supplied by plaintiff to defendants in connection with the removal and repaving of a driveway on defendants' property located within the City of Rye. The Court began a trial, but it soon became evident that there was an overriding dispositive legal issue that could resolve the case. Defendants, having raised the issue in their trial memorandum, then orally, and then in a subsequent letter, moved to dismiss based on the claimed lack of compliance with General Business Law § 770 et seq. The Court fixed a briefing schedule and the plaintiff submitted its Memorandum of Law.

Plaintiff's Exhibit 1 was the contract between the parties. It is addressed to the defendants and refers to their address. It states a price and describes the work to be done. It states a payment schedule and is signed and dated by the plaintiff's president and one defendant.

The contract does not contain plaintiff's licensed number, nor a statement of when the work will begin or be substantially completed, nor the notice required by General Business Law § 771(d) or (e), nor a notice of any right to revoke.

Based on these omissions from the contract, defendants move to dismiss the action.

As was sagaciously and modestly stated in Consigliere v. Gandolfo, 30 Misc.3d 1207(A), 958 N.Y.S.2d 644 [Rye City Ct 2011],

"In 1987, the Legislature added Article 36-A to the General Business Law to regulate Home Improvement Contracts. Gen. Bus. Law §770 et seq. The statute's plain purpose is to protect homeowners from unscrupulous, venal home improvement contractors. It protects them by, among other things, requiring a written contract containing specific language and items to be included, including granting certain rights to the homeowner. Gen. Bus. Law §771.

Gen. Bus. Law §771(1) says,

[e]very home improvement contract subject to the provisions of this article, and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract. The writing shall contain the following [enumerated requirements]....

The items specifically required to be included in the written contract insure that the homeowner is provided with a contract that is specific and definite in terms of who is to do the work, what is to be done, when it is to be done, how much it will cost, and what remedies are available.

The language of the statute is mandatory - every home improvement contract shall be evidenced by a writing and signed by all the parties...."

The removal and repaving of a driveway is a home improvement subject to General Business Law § 770 et seq. General Business Law § 770(6) defines a "home improvement contract" as "an agreement for the performance of home improvement, between a home improvement contractor and an owner, and where the aggregate contract price specified in one or more home improvement contracts, including all labor, services and materials to be furnished by the home improvement contractor, exceeds five hundred dollars." A "home improvement: includes "the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property and shall include, but not be limited to, the construction, erection, replacement, or improvement of driveways.". General Business Law § 770 (3). Since the contract was for driveway ...


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