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.