Recitation in accordance with CPLR 2219 of the papers considered Papers Numbered Notice of Motion and Affidavits Annexed Order to Show Cause and Affidavits Annexed Affirmation in Support Summons and Complaint 1 Replying Affidavits Filed Papers Exhibits 2-7 Memorandum of Law DECISION AND ORDER Decision After a bench trial the action is dismissed. Plaintiff failed to satisfy a prima facie case that it was entitled to a judgment as a matter of law for breach of contract. To satisfy a primary facie entitlement to judgment as a matter of law and recover damages for a breach of contract, a plaintiff “must demonstrate the existence of a contract, the plaintiff’s performance pursuant to the contact, the defendant’s breach of its contractual obligations, and damages resulting from the breach.”‘ (See, Village of Kiryas Joel v. County of Orange, 144 AD3d 895, 896 [2nd Dept. 2016]; Victory State Bank v, EMBA Hylan, LLC, 169 AD3d 963 [2nd Dept. 2019]). Additionally, pursuant to CPLR §3015(e): Where the plaintiff’s cause of action against a consumer arises from plaintiff’s conduct of business which is required by state or local law to be licensed by the department of consumer affairs…the county of Westchester department of consumer affairs the complaint shall allege, as part of the cause of action, that plaintiff was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issues such license. Plaintiff commenced the instant civil action for breach of contract seeking seven thousand seven hundred fifty-four dollars and fifty cents ($7,754.50).1 Defendant counterclaimed for fifteen thousand seventy dollars and fifty cents ($15,070.50). A bench trial was held on June 28, 2021. It is undisputed that the parties entered a contract on or about March 12, 2019, for construction work to be performed on defendant’s apartment located at 1040 Warburton Avenue, Yonkers, New York (hereinafter “the apartment”). The agreed upon contracted price was twenty-two thousand eight hundred twenty-five dollars ($22,825.00) (Pl. Exs. A and B). The parties agreed that plaintiff would remove plaster, repair and skim walls and ceilings, and paint defendant’s apartment. After an inquiry under oath at trial, the parties testified that they had agreed the work would be completed by March 19, 2019, as defendant had to move into the apartment and was having furniture delivered. Plaintiff represented that the work was completed on March 19, 2019 and that he and his employees removed all their belongings and tools from the defendant’s apartment on that date. Plaintiff further related that when he demanded final payment of seven thousand seven hundred fifty-four dollars and fifty cents ($7,754.50), defendant refused to pay same indicating that she was unsatisfied with the work performed and would not pay the balance. Ultimately, the parties were unable to settle the matter and the instant action was commenced. At trial, both parties introduced photographs depicting the appearance of the apartment prior and following completion of the work by plaintiff. (Pl. Ex. C-G). Further, copies of e-mails between plaintiff and defendant were entered into evidence. These documents demonstrated defendant’s dissatisfaction for the work performed, plaintiff’s request to re-enter the apartment to complete “touchups” and plaintiff’s continued demand for final payment per the contract. The parties also introduced photographs depicting the appearance of the apartment prior and following completion of the work by plaintiff. (Pl. Ex. C-G). In fact, the sole evidence that plaintiff submitted to support his claim for breach of contract were numerous pictures of the apartment and emails between the parties. To refute plaintiff’s contention that the contract was performed, defendant submitted pictures that she alleged demonstrated the wrong paint colors, the plaintiff’s failure to skim walls as agreed, improper craftmanship, paint left on the floor, cracks in the wall, missing light switch covers, as well as unfinished work on the ceiling and walls. The plaintiff did not object to the Defendant’s photographs. Although plaintiff represented to defendant the work was complete, the evidence demonstrated plaintiff sought to re-enter the apartment to perform “touchups”. Defendant refused to permit the Plaintiff’s re-entry, citing in sum and substance poor craftmanship. Plaintiff failed to demonstrate a cause of action for breach of contract in that plaintiff failed to sufficiently demonstrate that all terms of the contract were performed, the First Cause of Action is dismissed. Plaintiff’s Second and Third Causes of Action are dismissed as moot. Lastly, plaintiff’s Fourth Cause of Action requesting this Court to “Adjudge that the Notice of Mechanic’s Lien filed by Arch Construction & Design, Inc. is a good, valid and subsisting lien in the amount of $7,754.50, with interest” is denied and any mechanic’s lien placed upon defendant or the apartment’s title is vacated (Ver. Comp. p. 6, para. 4 (a)). Defendant’s counterclaim is dismissed. Lastly, this Court notes that plaintiff failed to plead that it is licensed as a contractor with Westchester County Department of Consumer Affairs (CPLR §3015(e)). Rather, the Verified Complaint solely states that “Arch was and is a domestic Corporation and existing by virtue of the laws of the State of New York, with its principal place of business located at 56 Sterling Avenue, Yonkers, NY 10704″ (Ver. Comp., para. 1). Dated and Entered: July 9, 2021
