Motion-Secondary: Cig Llc, D/B/A Elevations Shoring Llc v. Lipsky Building Construction, Inc, Barry Lipsky, Governor'S Office Of Storm Recovery, Housing Trust Fund Corp., Yolette Louis, Michael Cerverizzo, Robert Popp, Colleen Popp, Randy Tennariello, Marie Tennariello, Kevin O'Connell

On June 24, 2020 a Motion-Secondary was filed involving a dispute between Cig Llc, D B A Elevations Shoring Llc, and Barry Lipsky, Colleen Popp, Governor'S Office Of Storm Recovery, Housing Trust Fund Corp., Kevin O'Connell, Lipsky Building Construction, Inc, Marie Tennariello, Michael Cerverizzo, Randy Tennariello, Robert Popp, Yolette Louis, for Commercial Division in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 09/05/2023 01:40 AM INDEX NO. 606340/2020
NYSCEF DOC. NO. 205 RECEIVED NYSCEF: 09/05/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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CIG, LLC d/b/a ELEVATIONS SHORING LLC,

Plaintiff,
– against –

LIPSKY BUILDING CONSTRUCTION, INC., BARRY Index No.: 606340/2020
LIPSKY, GOVERNOR’S OFFICE OF STORM
RECOVERY, HOUSING TRUST FUND CORP.,
YOLETTE LOUIS, MICHAEL CERVERIZZO, ROBERT
POPP, COLEEN POPP, RANDY TENNARIELLO,
MARIE TENNARIELLO, and KEVIN O’CONNELL,

Defendants.
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___________________________________________________

DEFENDANT LIPSKY BUILDING CONSTRUCTION, INC.’S
MEMORANDUM OF LAW IN FURTHER SUPPORT OF
MOTION TO COMPEL AND VACATE NOTE OF ISSUE
___________________________________________________

Respectfully submitted,

PATRICIA ROONEY, P.C.
Attorneys for Defendant
Lipsky Building Construction, Inc.
394 South 15th Street
Lindenhurst, New York 11757
(631) 592-4405
prlaw@prlaw.pro

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................... i

STATEMENT OF FACTS .............................................................................................. 1

ARGUMENT................................................................................................................ 1

I. THE REQUESTED DISCOVERY IS BOTH RELEVANT AND MATERIAL
TO LBC’S COUNTERCLAIMS AND DEFENSES IN THIS ACTION AND
THUS, SHOULD BE COMPELLED ......................................................................1

A. Introduction.......................................................................................................1

B. The Statutory And Regulatory Laws Surrounding The Relevant Contractor
Licensing Laws ..................................................................................................2

C. LBC Had No Obligation To Plead That CIG Failed To Comply With The
Licensing Laws ................................................................................................12

CONCLUSION .................................................................................................................13

WORD COUNT CERTIFICATION .................................................................................14

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TABLE OF AUTHORITIES

Cases

B & F Bldg. Corp. v. Liebig, 76 N.Y.2d 689 (1990) .................................................................8, 13

Barak v. Chen, 87 A.D.3d 955, 929 N.Y.S.2d 315 (2d Dep’t 2011) ..............................................5

Ben Krupinski Bldr. & Assoc., Inc. v. Baum, 36 A.D.3d 843, 828 N.Y.S.2d 583
(2d Dep’t 2007) ....................................................................................................................8

Brightside Home Improvements, Inc. v. Northeast Home Improvement Servs.,
208 A.D.3d 446, 173 N.Y.S.3d 277 (2d Dep’t 2022) ..............................................7, 10, 11

Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193 (2003) ......................................................................4

Cappadona v. Salman, 228 A.D.2d 632, 646 N.Y.S.2d 27 (2d Dep’t 1996)...................................9

Carrea & Sons, Inc. v. Hemmerdinger, 42 Misc 3d 791, 980 N.Y.S.2d 241
(Rye City Ct. 2013) ..............................................................................................................2

Chosen Const. Corp. v. Syz, 138 A.D.2d 284, 525 N.Y.S2d 848, 850 (1st Dep’t 1988)...............12

CMC Quality Concrete III, LLC v. Indriolo, 95 A.D.3d 924,
944 N.Y.S.2d 253 (2d Dep’t 2012) ................................................................................. passim

Dickson v. Bonistall, 19 A.D.3d 640, 798 N.Y.S.2d 113 (2d Dep’t 2005) ......................................9

DML Interiors, Inc. v. Wenmar Contr. Corp., 2015 N.Y. Misc. LEXIS 2122,
2015 N.Y. Slip. Op. 31019(U) (Sup. Ct. Suffolk Cnty. June 4, 2015) ...................................14

Ellis v. Gold, 204 A.D.2d 261, 611 N.Y.S.2d 587 (2d Dep't 1994) ................................................8

Fisher Mech. Corp. v. Gateway Demolition Corp., 247 A.D.2d 579,
669 N.Y.S.2d 347 (2d Dep't 1998) ............................................................................................9

Flax v. Hommel, 40 A.D.2d 809, 835 N.Y.S.2d 735 (2d Dep’t 2007) ............................................8

Forman Constr., Inc. v. P.D.F. Constr., 175 A.D.3d 1491,
109 N.Y.S.3d (1st Dep’t. 2019) .......................................................................................7, 9, 10

Gfeller v. Russo, 45 A.D.3d 1301, 846 N.Y.S2d 501 (4th Dep’t 2007) ..........................................5

JME Enters. v. Kostynick Plumbing & Heating, 273 A.D.2d 201,
708 N.Y.S.2d 696 (2d Dep’t 2000) .....................................................................................9

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Kuchar v. Baker, 261 A.D.2d 402, 689 N.Y.S.2d 213 (2d Dep’t 1999) ....................................3, 11

Lazo v. Maks Trading Co. Inc., 84 N.Y.2d 896 (1994) ...................................................................5

Matter of Forbes & Assoc., LLC v. Nassau County Dept. of Consumer Affairs,
208 A.D.3d 480, 172 N.Y.S.3d 464 (2d Dep’t 2022) ..........................................................8

Morrison v. Tooma, 6 Misc. 3d 1031(A), 800 N.Y.S.2d 350,
2005 N.Y. Misc. LEXIS 367, 2005 N.Y. Slip. Op. 50261(U)
(Dist. Ct. Nassau Cnty. 2005) ...................................................................................3, 4, 11, 12

Patrick Butler General Contractors, Inc. v. Rocco, 281 A.D.2d 527,
722 N.Y.S.2d 66 (2d Dep’t 2001) ........................................................................................4, 11

Price v. Close, 302 A.D.2d 374, 754 N.Y.S.2d 660 (2d Dep’t 2003) .............................................9

Westchester Stone, Sand & Gravel v. Marcella, 262 A.D.2d 403,
691 N.Y.S.2d 143 (2d Dep’t 1999) ...........................................................................................9

Statutes and Regulations

Laws of Westchester County, Article XVI § 863.312[2] ................................................................9

Nassau County Administrative Code Chapter 21, Title D-1,
Article 1 §§ 21-11.0 – 21-11.16 .....................................................................3, 4, 10, 11, 12

New York City Administrative Code § 20-387 [a]) ......................................................................11

N.Y. C.P.L.R. § 3015(e) ..........................................................................................................13, 14

N.Y. Gen. Bus. Law § 770, et seq....................................................................................................2

N.Y. Gen. Bus. Law § 771 ...........................................................................................................2, 3

Suffolk County Administrative Code § 563 ..............................................................................3, 10

iii

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DEFENDANT’S REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF MOTION TO COMPEL
AND TO VACATE NOTE OF ISSUE

Lipsky Building Construction Inc. (“LBC”)1 respectfully submits this memorandum of law

in further support of LBC’s Motion to Compel and to Vacate the Note of Issue (“LBC’s Motion”)

and in response to Plaintiff CIG’s Opposition to LBC’s Motion, dated July 28, 2023 (“CIG Opp.”),

NYSCEF ## 177-186.

Statement of Facts

For facts relevant to this Motion, the Court is respectfully referred to the Affirmation of

Patricia Rooney, dated June 15, 2023, NYSCEF # 162, and the Affidavit of Barry Lipsky, dated

September 4, 2023, submitted herewith, and the Exhibits annexed thereto.

ARGUMENT

POINT I

THE REQUESTED DISCOVERY IS BOTH RELEVANT
AND MATERIAL TO LBC’S COUNTERCLAIMS AND DEFENSES
IN THIS ACTION AND, THUS, SHOULD BE COMPELLED

A. Introduction

CIG argues that this Court should deny LBC’s Motion claiming that because it “was at all

times licensed by the appropriate agencies,” this “is not a case of an unlicensed subcontractor suing

a homeowner.” See CIG Opp. at p. 1, NYSCEF # 186. Perhaps forgetting that CIG attempted to

sue the individual homeowners of the projects involved in this action (“Homeowners”) despite

provisions in both the Prime Contract and the Subcontract expressly forbidding it, CIG just does

not understand that LBC is not necessarily contending that CIG was not licensed.

1
Unless otherwise indicated, capitalized terms used herein have the meaning ascribed to them in the Affidavit of Barry Lipsky,
dated September 4, 2023 (“Lipsky Aff.”), submitted in support of the instant motion.

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Rather, first, it is LBC’s position and the documents demonstrate that both Guijarro and

Baker, the only people that CIG admitted were project managers and/or supervisors on these

individual residential projects, were not CIG’s employees. Instead, these men were independent

contractors paid on a 1099 basis by CIG and neither of them were licensed to perform the work

because CIG never properly added them to its license or, in the case of Guijarro, only allegedly

added Guijarro to its license on September 17, 2018, long after CIG admitted its work had been

completed.

Second, LBC it is also LBC’s position and the documents demonstrate that, even assuming

arguendo this Court finds that Guijarro and Baker were CIG’s employees (and LBC emphatically

contends they were not), CIG still had to add them to its license before either of them began to

supervise and/or manage the unlicensed and basically unskilled day laborers that CIG admitted

worked on these individual residential projects under the supervision of either Guijarro or Baker.

B. The Statutory And Regulatory Laws Surrounding The Relevant Contractor Licensing Laws

In 1987, as part of the legislature’s efforts to curb fraudulent practices by “unscrupulous,

venal home improvement contractors” preying on New York’s homeowners, the legislature added

Article 36 of the General Business Law to regulate Home Improvement Contracts. See Carrea &

Sons, Inc. v. Hemmerdinger, 42 Misc. 3d 791, 794-95, 980 N.Y.S.2d 241, 244 (Rye City Ct. 2013)

(citing Gen. Bus. Law (“GBL”) § 770 et seq.). GBL § 771 requires that all home improvement

contracts be in writing and contain, among other things, the contractor’s license number, a schedule

of progress payments “showing the amount of each payment … and specifically identifying the

state of completion of the work or services to be performed, including any materials to be supplied

before each such progress payment is due,” and a specific statement warning homeowners that

liens could be filed against their property under certain circumstances.

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As a result, many municipalities including Nassau and Suffolk Counties have enacted local

laws designed to protect homeowners from unscrupulous contractors. See, e.g., Suffolk County

Administrative Code § 563, Nassau County Administrative Code Chapter 21, Title D-1, Article 1,

§§ 21-11.0 – 21-11.16 and Rules and Regulations of the Nassau County Commissioner of

Consumer Affairs Relating to the Home Improvement Business (Rule 21 – “A licensed contractor

shall not use an unlicensed subcontractor.”).

CIG argues that LBC “has not provided any cases to support [its] theory that laborers also

need to be licensed notwithstanding licensed supervision,” see CIG Opp. at p. 1, NYSCEF # 186,

claiming that its “Supervisors,” Baker and Guijarro “were at all times properly licensed.”2 See

CIG Opp. at p. 2.

CIG then proceeds to argue im the alternative that even if LBC “could prove that [CIG]

was unlicensed, [LBC’s] liability for nonpayment would not be relieved at all because ‘the person

seeking to invoke the licensing requirements must actually reside in the [premises]’ when the work

is performed or own the premises at the time the agreement is entered, and [LBC] neither owned

nor resided in the subject premises at any time.” See id. (quoting Kuchar v. Baker, 261 A.D.2d

402, 403 (2d Dep’t 1999), also citing Morrison v. Tooma, 6 Misc. 3d 1031(A), at *3, 800 N.Y.S.2d

350, 2005 N.Y. Misc. LEXIS 367, 2005 N.Y. Slip. Op. 50261(U) (Dist. Ct. Nassau Cnty. 2005)).

CIG contends that LBC “cannot invoke the Consumer Protection Law to bar [CIG’s]

recovery because [CIG] is a general contractor and not an owner or resident.” See id. According

to CIG, CIG’s “compliance with licensing requirements is not an issue in this action” because this

is not “an action between a contractor and a homeowner in privity.” See id. CIG then concludes

2 Of course, with respect to Mr. Gaspard’s allegation that CIG was “properly licensed to perform home
improvement work by the New York City Department of Consumer Affairs and the Nassau County Department of
Consumer Affairs," see Gaspard Aff. ¶ 2, NYSCEF # 177, none of houses in the Project were located in New York
City so that part of his allegation relating to the New York City licensing authority is totally irrelevant

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that all LBC’s demands “sought in relation to licensing are irrelevant, and [CIG] should not be

compelled to respond.” See id.

CIG further contends that LBC “cannot prove that [CIG] breached the Subcontract by

employing unlicensed workers as laborers because [CIG’s] laborers are not required to possess

individual licenses so long as they were supervised by licensed Project Managers,” because the

Nassau County Administrative Code “‘provides that no contractor's license shall be required of

[a]n individual who performs labor or services for a contractor as an employee thereof.’” See id.

(quoting Patrick Butler Gen. Contr., Inc. v. Rocco, 281 A.D.2d 527, 528, 722 N.Y.S.2d 66, 68 (2d

Dep’t 2001) (citing Nassau County Administrative Code § 21–11.10[1]) (noting “existence of an

employee-employer relationship is based upon evidence that the employer exercises either control

over the results produced or over the means used to achieve the results.”).

Without a shred of relevant legal authority, CIG concludes that the “tax status of 1099 vs.

W2 is of no relevance,” opining that any “reference to the Administrative Code in [LBC’s Motion]

is misdirection.” See id. at pp. 2-3.

However, there was ample testimony during Mr. Gaspard’s deposition, albeit although at

times inconsistently, that Baker and Guijarro were independent contractors, not employees of CIG.

See, e.g., Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193, 198 (2003) (noting critical inquiry in

determining whether employment relationship exists relates to degree of control exercised by

purported employer over the results produced or the means used to achieve such results. Factors

relevant to that inquiry are whether the worker worked at his own convenience, was free to engage

in other employment, received fringe benefits, was on the employer’s payroll, and was on a fixed

schedule); Lazo v. Maks Trading Co. Inc., 84 N.Y.2d 896, 897 (1994) (finding defendant-grocer

was not vicariously liable for injuries that resulted from its laborer’s altercation with plaintiff,

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because laborer was not an employee. In coming to that conclusion, the Court of Appeals noted

that the laborer made his own schedule, was free to have other employment, was never placed on

the employer’s payroll, received no benefits, had no taxes withheld and was paid in a lump sum

payment with two other individuals.); Barak v. Chen, 87 A.D.3d 955, 957, 929 N.Y.S.2d 315, 317

(2d Dep’t 2011) (finding, in case where evidence submitted showed contractors owned their own

vehicles, paid for their own insurance, received no salary but retained a percentage of fairs and

tips, scheduled their own hours, had discretion to reject dispatches and were not provided with W-

2 statements, that there was no employment relationship as purported employer did not exercise

sufficient control over contractors’ work.); Gfeller v Russo, 45 A.D.3d 1301, 1302, 846 N.Y.S.2d

501, 503 (4th Dep’t 2007) (holding that, in addition to method and means by which work is done,

other relevant factors to consider when deciding whether a person is an independent contractor or

employee are, among others, how payment is made, and whether Social Security and other taxes

are withheld from such payment).

For example, Mr. Gaspard testified, among other things, that:

• Guijarro and Baker both got 1099s from CIG, not W-2s, but they were not
considered independent contractors, see Excerpts from Transcript of EBT of Randy
Gaspard, dated Nov. 28, 2022 (“Gaspard Tr. I”), annexed to the Lipsky Aff. as Ex.
“PR-1,” at pp. 25-26.
• projects were not assigned by CIG to either Guijarro or Baker in New York, CIG
“let [Baker] and [Guijarro] determine that” on their own, see id. at p. 27;
• Baker was CIG’s employee from 2016 through 2019, see id. at p. 35, and he had
his own companies while working for CIG and Mr. Gaspard thought Baker used
“New Orleans Shoring as his LLC,” see id. at p. 36;
• Guijarro was CIG’s employee until 2020 when he got his own licenses, own
insurance, and started doing subcontract work, and Guijarro also had his own
company while he was working for CIG which Mr. Gaspard believed was RG
Shoring, see id. at p. 37;
• Guijarro did not have a general contractor’s license, a house lifting license, or a
carpentry license because he didn’t need such licenses, see id. at p. 38;

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• Guijarro put together “pay requisitions for the day laborers and any material
reimbursements and his payroll,” see id.;
• Guijarro was paid a different amount every week – he got commissions and
bonuses, see id. at pp. 38-39;
• Guijarro and Baker were CIG’s “project managers, superintendents, whatever you
want to refer to them . . .. They managed the project [and] oversaw the
subcontractor[s],” see id. at p. 74, they “were running the jobs,” see id. at p. 75;
• Nassau County does not require an employee of a license holder to have a license,
or a “laborer working underneath the license contract,” see id. at p. 96;
• day laborers worked on the project, but he had no idea how many, sometimes they
worked for a day or a week, and they were “reimbursed through Guijarro and
Baker,” and “getting paid daily,” see id.;
• the day laborers did not get 1099s or W-2s, see id. at pp. 97-98, and CIG did not
get I-9s from them, see id. at pp. 98-99;
• CIG did not pay any tax on Baker’s and Guijarro’s commissions because they were
1099s, Baker and Guijarro controlled and supervised the day laborers, see id. at p.
99;
• he (Gaspard) did not manage the day laborers - that’s what Guijarro and Baker did,
see id., and he (Gaspard) did not fill out any GOSR reports, that’s what Baker did,
see id. at p. 100;
• CIG did not pay FICA, taxes, Social Security, N.Y. State Disability, unemployment
insurance for the day laborers, although CIG did pay the tax “that’s appropriate for
a day laborer.” See id. at p. 101.

As one can see from the above testimony, there was every indication that Guijarro and

Baker were independent contractors, and not employees of CIG, because, among other things,

they:

• controlled/managed the individual residential projects with practically no
supervision from CIG;
• decided which individual residential projects they wanted to work on and were not
assigned any particular individual residential projects by CIG;
• had their own crews who were controlled, managed and supervised by them, not by
CIG;
• submitted their own requisitions to CIG and requests for material reimbursements
and money to pay the day laborers that worked under them as part of their crews;
• were paid on a 1099 basis, not on a W-2, and they were paid different amounts each
week and commissions and bonuses;

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• had to pay their own taxes and CIG did not pay Social Security, N.Y. State
Disability, unemployment insurance or other similar things for them;
• both continued to have their own companies while they worked on the individual
residential projects;
• ran the jobs, put together pay requisitions, requested material reimbursements and
had their own “payrolls.”

Furthermore, Mr. Gaspard’s testimony was evasive, riddled with inconsistencies and

unsupported by many of the documents CIG submitted in opposition to LBC’s Motion. For

example, Mr. Gaspard testified, among other things, that he never called Baker a partner of CIG,

see id. at p. 36, even though CIG identified Baker as a “PM,” i.e., Project Manager, and a “Partner”

of CIG. See Gaspard Aff., Ex. “2,” NYSCEF # 179.

Contrary to CIG’s contention that it was properly licensed, there are many cases that

support LBC’s position and say otherwise. See, e.g., Forman Constr., Inc. v. P.D.F. Constr., 175

A.D.3d 1491, 1492, 109 N.Y.S.3d 453, 454 (1st Dep’t 2019); Brightside Home Improvements, Inc.

v. Northeast Home Improvement Servs., 208 A.D.3d 446, 450, 173 N.Y.S.3d 277, 282 (2d Dep’t

2022); CMC Quality Concrete III, LLC v. Indriolo, 95 A.D.3d 924, 944 N.Y.S.2d 253 (2d Dep’t

2012); Matter of Forbes & Assoc., LLC v. Nassau County Dept. of Consumer Affairs, 208 A.D.3d

480, 482, 172 N.Y.S.3d 464, 465-66 (2d Dep’t 2022) (holding Commissioner's determination was

rationally based and not arbitrary and capricious” where evidence submitted at hearing established

“petitioners were neither licensed nor insured to perform the work described in the contract, and

that they were not permitted to use subcontractors.”).

In CMC Quality Concrete, the defendant-general contractor, hired by the defendant-

homeowners to perform home improvement work, hired the plaintiff-subcontractor to perform part

of the work pursuant to a subcontract. 95 A.D.3d at 925, 944 N.Y.S.2d at 254. The plaintiff-

subcontractor commenced an action alleging, among other things, the general contractor breached

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the subcontract by failing to pay the full amount due. See id. The defendants moved, inter alia,

for summary judgment dismissing the complaint insofar as asserted against the general contractor

on the ground that the subcontractor was not a licensed home improvement contractor, and

pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against the general contractor.

See id. The lower court, among other things, denied those branches of the motion. See id.

The court begin its discussion by stating a “home improvement contractor who is

unlicensed at the time of the performance of the work for which he or she seeks compensation

forfeits the right to recover damages based on either breach of contract or quantum meruit." See

id. at 925-26, 944 N.Y.S.2d at 254-55 (citing Flax v. Hommel, 40 A.D.2d 809, 810, 835 N.Y.S.2d

735, 736 (2d Dep’t 2007); B & F Bldg. Corp. v. Liebig, 76 N.Y.2d 689, 694 (1990); Ben Krupinski

Bldr. & Assoc., Inc. v. Baum, 36 A.D.3d 843, 844, 828 N.Y.S.2d 583, 584 (2d Dep’t 2007); Ellis

v. Gold, 204 A.D.2d 261, 265-66, 611 N.Y.S.2d 587, 590 (2d Dep't 1994) (citation omitted)).

The CMC Quality Concrete court found the general contractor established prima facie, that

the subcontractor sought to recover damages for breach of contract to perform home improvement

services which required it to obtain a home improvement license and the subcontractor had no

license. See id. at 925-26, 944 N.Y.S.2d at 254-55 (citing Laws of Westchester County, article

XVI, § 863.312 [2]; Westchester Stone, Sand & Gravel v. Marcella, 262 A.D.2d 403, 404, 691

N.Y.S.2d 143, 143-44 (2d Dep’t 1999); Cappadona v. Salman, 228 A.D.2d 632, 633, 646 N.Y.S.2d

27, 27-28 (2d Dep’t 1996)); cf. Dickson v. Bonistall, 19 A.D.3d 640, 641, 798 N.Y.S.2d 113, 114

(2d Dep’t 2005).

Therefore, the CMC Quality Concrete court held the lower court should have granted that

branch of the motion which was for summary judgment dismissing the complaint insofar as

asserted against the general contractor. See id. at 925-26, 944 N.Y.S.2d at 254-55 (citing JME

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Enters. v Kostynick Plumbing & Heating, 273 A.D.2d 201, 203, 708 N.Y.S.2d 696, 698 (2d Dep’t

2000); Westchester Stone, 262 A.D.2d at 404, 691 N.Y.S.2d at 144; Fisher Mech. Corp. v.

Gateway Demolition Corp., 247 A.D.2d 579, 581, 669 N.Y.S.2d 347, 348-49 (2d Dep't 1998); see

generally Price v. Close, 302 A.D.2d 374, 375, 754 N.Y.S.2d 660, 661 (2d Dep’t 2003).

In Forman, plaintiff, a commercial contractor, performed work on property in Suffolk

County owned by defendants Pier D'Alessandro and Debra D'Alessandro. 175 A.D.3d at 1492,

109 N.Y.S.3d at 454. Defendant Pier D'Alessandro did business as a commercial entity, and that

entity hired the plaintiff. Id. When a dispute arose, plaintiff commenced a breach of contract

action against the defendants, and the defendants moved for summary judgment dismissing the

complaint because plaintiff was unlicensed and, thus, had “forfeited its right to recover under any

legal theory.” Id. The lower court granted the defendants' motion, and the plaintiff appealed. Id.

After citing the rules relating to prohibition of recovery by unlicensed contractors, the court

noted it was “undisputed that, at all relevant times, the plaintiff did not have a home improvement

license as required by Administrative Code of Suffolk County § 563-17 (a),”and further noted

plaintiff contended that it did not have to be licensed because it had a contract with the defendant-

general contractor, another commercial entity. 175 A.D.3d 1491, 1492, 109 N.Y.S.3d 453, 454

(1st Dep’t 2019)

However, the court disagreed and affirmed the lower court which had prohibited any

recovery by the plaintiff, holding “[w]e disagree with the plaintiff's contention that the licensing

provision does not apply to entities that enter into contracts with general contractors, as opposed

to entities that enter into contracts with owners or residents of the premises where the construction

work is to be performed.” Id. (citations omitted).

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In Brightside, plaintiff, a commercial home improvement, sued defendant-general

contractor and other entities to recover for work it performed for a general contractor on a home

improvement contract in Nassau County. 208 A.D.3d at 450, 173 N.Y.S.3d at 282. The court

noted that “Nassau County Administrative Code § 21-11.2 [did] not expressly require licenses

specific to each subspecialty of home improvement.” Id. The court then found the “defendants'

submissions established that the plaintiff held a valid home improvement license from Nassau

County at the time of the subject work,” but the license was “purportedly limited to the

subspecialties of trim, windows, siding and awnings." Id.

The court denied the defendants’ motion to dismiss, explaining that absent “an explanation

from a County official as to the County's practice of sublicensing, and whether or not the plaintiff

was properly licensed to perform the work at issue, the submissions were insufficient to

demonstrate that no significant dispute exist[ed] regarding whether the plaintiff was properly

licensed to do the work it performed.” Id. (citation omitted).

On the other hand, other than an 18 yr. old district court case where the court had

misgivings about its interpretation of the Nassau OCA contractor licensing laws, see Morrison v.

Tooma, 6 Misc. 3d 1031(A), at * 3 (Dist. Ct. Nassau Cnty. 2005) (cited in CIG Opp. at p. 2), none

of the cases relied upon by CIG provide any real support for its position. See, e.g., Patrick Butler,

722 N.Y.S.2d at 68, 281 A.D. at 528 (citing Administrative Code § 21-11.10[1]) (cited in CIG

Opp. at pp. 2, 6, 8, 9); Kuchar, 261 A.D.2d at 403, 689 N.Y.S.2d at 214 (cited in CIG Opp. at p.

2).

In Patrick Butler, the plaintiff, a contractor licensed in Nassau County, hired several

workers who did not have their own separate contractors’ licenses to assist in defendants’

renovation. 722 N.Y.S.2d 66, 68, 281 A.D. 527, 528 (2d Dep’t 2001). Defendants argued that

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plaintiff was barred from recovering an outstanding balance because the workers were not licensed

and, thus, the exemption in Administrative Code § 21-11.10[1] was inapplicable because the

workers were independent contractors. Id. The court noted the existence of an employee-employer

relationship is based upon evidence that the employer exercises either control over the results

produced or over the means used to achieve the results, which is an issue of fact. Id.

In Kuchar, the court held that even if a contractor did not have a license when the parties

entered into the contract or at the time the work was performed, he “would not necessarily have

been barred from recovery because he alleged that the other party “was neither an owner of the

premises at the time the agreement was entered into, see Kuchar, 261 A.D.2d at 403, 689 N.Y.S.2d

at 214 (citing New York City Administrative Code § 20-387 [a]), nor was the other party “a

resident of the premises at the time that the work was performed.” Id.

Although the court’s decision in Morrison v. Tooma, 6 Misc. 3d 1031(A), 1031A, 800

N.Y.S.2d 350, 350, 2005 N.Y. Misc. LEXIS 367, *5-6, 2005 N.Y. Slip. Op. 50261(U) (Dist. Ct.

Nassau Cnty. 2005), holds that an unlicensed contractor can maintain a suit against a contractor,

the decision is not precedent and is more than 18 yrs. old and even the court case was not convinced

that was what Nassau OCA intended. Id. (noting court was “not totally convinced that this [was]

the result intended by Nassau County Sec. 21-11.1 concerning the licensing of contractors who

perform improvements at residential properties. A copy of this decision is being sent to the Nassau

County Legislature and Nassau County Consumer Affairs. This Court is requesting the Legislature

to review the ordinance and amend same to clearly include contracts between contractors or

subcontractors for home improvements, as being within the framework of the ordinance, if that in

fact is the intent of the ordinance.”).

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In the present case, because CIG violated the Subcontract, the Prime Contract and the

Nassau OCA contractor licensing laws when it illegally used Guijarro and Baker, unlicensed

independent subcontractors, to perform the work, LBC respectfully requests that this Court grant

its motion in its entirety.

C. LBC Had No Obligation to Plead That CIG Failed To Comply With The Licensing Laws

CIG argues that there was no mention in LBC’s answer of the “Nassau County Consumer

Affairs Law as a defense to payment of the money paid to [LBC] for CIG’s work.” See Opp. MOL,

at p. 5. Contrary to CIG’s counsel’s unsupported assertion, the burden is not on LBC to plead failure

to comply with licensing requirements as an affirmative defense. Rather, the burden is on CIG to

allege in the complaint that it had a valid home improvement license at the time it was performing the

home improvement work. See, e.g., Chosen Const. Corp. v. Syz, 138 A.D.2d 284, 286, 525 N.Y.S2d

848, 850 (1st Dep’t 1988).

This pleading requirement has been codified in C.P.L.R. § 3015(e) which provides:

[W]here the plaintiff’s cause of action against a consumer arises from the plaintiff’s
conduct of a business which is required by state or local law to be licensed by…..the
Nassau county 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
issued such license. The failure of the plaintiff to comply with this subdivision will permit
the defendant to move for dismissal…”

Indeed, the legislative purpose in enacting CPLR 3015(e) was to benefit consumers by

shifting the burden from the homeowner to the contractor to establish that the contractor was

licensed. See B & F Bldg., 76 N.Y.2d at 693.

Here, CIG commenced an action against the Homeowners as well as LBC, the general

contractor. The Appellate Division Second Department has extended the pleading requirement of

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CPLR 3015 and the definition of “consumer” to cover cases where a subcontractor pursues a claim

for payment against a general contractor.

For example, in CMC Quality Concrete, a subcontractor commenced an action against a

general contractor and homeowners for money owed on a construction project. 95 A.D.3d at 925,

944 N.Y.S.2d at 254. The court referenced the requirement for pleading a home improvement

contract under CPLR 3015(e) and noted that plaintiff had failed to raise any issue of fact as to

whether it had complied with the licensing requirements. Id. at 926, 944 N.Y.S.2d at 255.

Accordingly, the court dismissed the action against the general contractor. Id.

Furthermore, any attempts by CIG to argue that it was a “commercial contractor” or that it

had not entered a home improvement contract with any homeowners and instead was contracting

with LBC, a general contractor, would prove unsuccessful. CIG was performing home

improvement construction services at individual residential projects pursuant to the Subcontract.

Moreover, CIG commenced this action against the individual Homeowners, as well as LBC, the

general contractor. See DML Interiors, Inc. v. Wenmar Contr. Corp., 2015 N.Y. Misc. LEXIS

2122, *12, 2015 N.Y. Slip. Op. 31019(U), *7 (Sup. Ct. Suffolk Cnty. June 4, 2015) (holding that

although subcontractor was a commercial contractor, because it was performing home

improvement contracting at two residences, it was subject to the licensing requirements under the

Nassau and Suffolk Codes, as well as the pleading requirements under CPLR 3015(e)); see also

CMC Quality Concrete, 95 A.D.3d 924, 944 N.Y.S.2d 253.

Conclusion

For all the reasons mentioned above, defendant Lipsky Building Construction, Inc. requests

that this Court grant its Motion to Compel and to Vacate the Note of Issue in its entirety, or, in the

alternative, should this Court decide not to Vacate the Note of Issue, permit defendant Lipsky

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PRINTING SPECIFICATIONS STATEMENT

I hereby certify, pursuant to Rule 202.8(b) of the Uniform Rules for N.Y. State Trial

Courts, that the foregoing Memorandum of Law in Further Support of Motion to Compel and

to Vacate Note of Issue was prepared on a computer using Microsoft Word.

Type: A proportionally spaced typeface was used:

Name of typeface: Times New Roman
Point size: 12
Line spacing: Double

Word Count: The total number of words in the Affirmation, inclusive of point

headings, footnotes and this Statement is 4,395.

Dated: September 4, 2023
Lindenhurst, New York

PATRICIA ROONEY, P.C.

By: /s/ Patricia A. Rooney
Patricia A. Rooney
Attorneys for Defendant Lipsky Building
Construction, Inc.
394 South 15 Street
Lindenhurst, New York 11757
(631) 592-4405
prlaw@prlaw.pro

/Users/patriciarooney/Patricia Rooney, PC Dropbox/Patricia Rooney, PC Team Folder/2020 01 08 PRLAW Q DRIVE/q
(KRT017)/!!PRPC/1009-37/Motion/Motion Vacate/LBC Reply/MOL/2023 09 04 Reply MOL Printing Specifications Stmt.docx

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Case Info

Judge

Erica L Prager Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

September 05, 2023

Case Filing Date

June 24, 2020

County

Parties

Barry Lipsky Defendant
CIG LLC, d/b/a ELEVATIONS SHORING LLC Plaintiff
Colleen Popp Defendant
GOVERNOR'S OFFICE OF STORM RECOVERY Defendant
HALL, ASHLEY Attorney for the Defendant
HOUSING TRUST FUND CORP. Defendant
Kevin O'connell Defendant
LAREDDOLA, ROBERT J Attorney for the Plaintiff
LIPSKY BUILDING CONSTRUCTION, INC Defendant
Marie Tennariello Defendant
Michael Cerverizzo Defendant
Randy Tennariello Defendant
Robert Popp Defendant
ROONEY, PATRICIA ANN Attorney for the Defendant
ROZARIO, ROVIN RAJENDRA Attorney for the Defendant
SMITH, TURNER P. Attorney for the Defendant
TUCKER, CHRISTOPHER CHARLES Attorney for the Defendant
Yolette Louis Defendant
ROBERT ECK Attorneys for Plaintiffs
ROBERT RENNA Attorney
ROBERT LA FAYE KWALWASSER Attorneys for Defendants
PETER MASTAGLIO Attorney
Nicole Mazanitis Attorneys for Defendants
ROBERT JORDAN Attorneys for Plaintiffs
ROBERT AST Attorneys for Plaintiffs
ROBERT LEO Attorney

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Motion-Secondary: Cig Llc, D/B/A Elevations Shoring Llc v. Lipsky Building Construction, Inc, Barry Lipsky, Governor'S Office Of Storm Recovery, Housing Trust Fund Corp., Yolette Louis, Michael Cerverizzo, Robert Popp, Colleen Popp, Randy Tennariello, Marie Tennariello, Kevin O'Connell

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