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Petitioner Seeks to Vacate Determination by Department of Consumer Affairs

Legal counsel said that, the current motion by Petitioner is to vacate a determination of the Nassau County Department of Consumer Affairs (DCA) to the effect that Plaintiff Corporation was an unlicensed home improvement contractor in violation of the Nassau County Administrative Code. The Cross-motion, denominated a motion by the Respondent, is to confirm the determination of the DCA.
The related action is by plaintiff to recover $90,000 held in escrow after the transfer of title to a single family residence from North Sea to the respondent. The $90,000 included $65,000 which was due to plaintiff on receipt of a Certificate of Completion, and $25,000 for work to be completed after the transfer of title. This Court has previously awarded plaintiff a judgment in the amount of $65,000. The respondent filed a complaint with the DCA that plaintiff was not entitled to payment because they were operating as an unlicensed home improvement contractor in violation of Local Law 6-1970, § 21-11.2.1 The parties appeared for a hearing before Hearing Officer, on June 19, 20082, and a determination was rendered on June 22, 2008. It found Elm Sea in violation of the ordinance and fined them $500.3 A Nassau Order of Protection Lawyer said that, plaintiff appealed and a final determination was rendered on July 9, 2008.4 The Commissioner of the Office of Consumer Affairs rejected the arguments of plaintiff that the work performed on the residence after the closing was in accordance with a contract of sale in which plaintiff, as owner, agreed to perform work on the premises prior to closing. The Commissioner distinguished between the work done before the transfer of title, when plaintiff was arranging for work on its own home, and work done in accordance with a “punch list”. The Respondent concluded that the change order was a contract for home improvement for which a license was required.
The Court concludes that the determination by the Respondent that the “Punch List” constituted a separate and distinct home improvement contract requiring a license for performance is unreasonable. The determination is vacated and the fine in the amount of $500 is set aside. There is no controversy but that the work done by Elm Sea on the home to which it took title on September 1, 20066 did not require a home improvement license. The work was done in accordance with necessary permits and was approved by issuance of certificates of completion.
When the closing between plaintiff and respondent occurred on August 14, 2007, the sum of $65,000 was placed in escrow pending receipt of certificates of completion from the Town of North Hempstead. Despite production of the documents in January 2007, the respondent refused to consent to the release of the funds. plaintiff was required to bring an action in this Court, as a result of which they were awarded judgment against respondent for release of the funds.

The Nassau County Administrative Code sets forth the requirements with respect to home improvement licensing. The first consideration is the legislative purpose, which is stated as follows: Legislative purpose. It is the purpose of the Board of Supervisors in enacting this Local Law to safeguard and protect the homeowner against abuses on the part of home improvement contractors by regulating the home improvement, remodeling and repair business and by licensing of persons engaged in such business.
It is significant to note that when the contract of sale, which provided for the renovations, was executed, plaintiff, not the respondent, was the owner of the home. The local law under which the violation was issued was not intended to protect purchasers, but rather owners of one, two and three-family homes. The respondent was not owners. They were purchasers who contracted with an owner to purchase a one-family home upon which certain renovations were to be performed before they accepted title.
The defendant took the position that he was not acting as a contractor, but as a supervisor, and therefore not subject to the licensing requirement. Under these circumstances, the Second Department concluded that the plaintiff failed to make out a prima facie case that the defendant was engaged in a home improvement business as defined in the ordinance, and affirmed the denial of the plaintiff’s motion to dismiss the counterclaims.
The circumstances of this case are not different than those in Dickson. There has been no showing that plaintiff was a home improvement contractor, or held itself out to be. There was further no evidence that plaintiff undertook to perform any work as recited on the punch list. There is no rational basis for the conclusion of the Hearing Officer.
The petition to vacate the determination of the Officer of Consumer Affairs and the imposition of a $500 fine is vacated. The cross-motion to confirm the determination is denied.
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