Opinion
2007-971 Q C.
Decided July 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 19, 2006. The order denied defendant's motion to dismiss the amended complaint.
Order modified by providing that so much of defendant's motion as sought dismissal of plaintiff's first and second causes of action, alleging, respectively, breach of contract and an account stated, is granted; as so modified, affirmed without costs.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
In its amended complaint, plaintiff sought to recover the sum of $1,439.28, alleging, as a first cause of action, breach of contract, as a second cause of action, an account stated, and as a third cause of action, quantum meruit, for refinishing defendant's floors and a banister. There was no written contract between the parties. Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (3), (7) and (8), challenging the court's jurisdiction and plaintiff's legal capacity to sue, and alleging a failure to state a cause of action.
The affidavit of the process server constituted prima facie evidence of proper service of the summons and complaint ( e.g. Francis v Francis, 48 AD3d 512; Roberts v Anka, 45 AD3d 752, 753). Since defendant's conclusory allegations were insufficient to rebut the presumption of proper service ( see 96 Pierrepont v Mauro, 304 AD2d 631; Simmons First Natl. Bank v Mandracchia, 248 AD2d 375), the lower court properly concluded that plaintiff had established jurisdiction over defendant. In addition, the amended complaint was properly served by mailing it to the office of defendant's attorney (CPLR 2103).
Defendant further claimed that he had retained "Pat Pellegrini Floors," rather than plaintiff Pat Pellegrini Flooring Corporation, to work on his floors, and that "Pat Pellegrini Floors" was not licensed to do business in Nassau County and did not have a certificate to do business in Nassau County. Plaintiff opposed the motion, asserting that defendant knew that it did business under the name Pat Pellegrini Floors and that its amended complaint set forth its Nassau County license number in accordance with CPLR 3015 (e).
Although under section 130 of the General Business Law, plaintiff was required to file a certificate setting forth the name or designation under which it was conducting business in the office of the Secretary of State, in the absence of a showing of an intent to defraud, the failure to file a certificate of doing business under a specific name will not prevent a plaintiff from recovering ( Cohen v OrthoNet N.Y. IPA, Inc., 19 AD3d 261). Moreover, by pleading that it is duly licensed in Nassau County and setting forth the license number, plaintiff made a showing sufficient to oppose defendant's motion on these grounds.
In the absence of a written, signed contract between the parties, an action for breach of a contract for home improvements cannot lie ( see General Business Law § 771; Precision Founds. v Ives, 4 AD3d 589; Frank v Feiss, 266 AD2d 825; Harter v Krause, 250 AD2d 984; Mindich Devs. v Milstein, 227 AD2d 536; cf. Wowaka Sons v Pardell, 242 AD2d 1). Consequently, the lower court erred in denying defendant's motion to dismiss plaintiff's cause of action for breach of contract.
The lower court likewise erred in denying defendant's motion to dismiss the cause of action for an account stated. A claim for an account stated is independent of the original obligation ( see W.R. Haughton Training Stables v Miriam Farms, 118 AD2d 639). The receipt and retention of an account without objection within a reasonable period of time entitles a plaintiff to summary judgment on the account independent of the original obligation ( see Werner v Nelkin, 206 AD2d 422). There can be no account stated where no account was presented or where any dispute about the account is shown to have existed ( Abbott, Duncan Wiener v Ragusa, 214 AD2d 412, 413; Waldman v Englishtown Sportswear, 92 AD2d 833, 836). Here, plaintiff failed to plead the essential elements of a cause of action on an account stated, and the exhibits annexed to the affidavit of Pasquale Pellegrini, submitted by plaintiff in opposition to defendant's motion to dismiss, demonstrate that within a reasonable time after receipt of plaintiff's invoice, defendant objected to the stated account. Thus, defendant's motion to dismiss this cause of action should have been granted.
"In assessing a motion under CPLR 3211 (a) (7) . . . a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint ( Rovello v Orofino Realty Co., [ 40 NY2d 633], at 635), and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'" ( Leon v Martinez, 84 NY2d 83, 88, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275). A claim founded in quantum meruit "applies in the absence of an express contract and entails a legal obligation imposed in order to prevent unjust enrichment" ( Brylgrove Ltd. v Tomkins, PLC, 172 AD2d 452, 454, citing Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388). While plaintiff's noncompliance with the requirements of General Business Law § 771 precludes recovery on its cause of action for breach of contract, it does not preclude recovery on its cause of action for quantum meruit ( see e.g. Precision Founds. v Ives, 4 AD3d 589, supra; Frank v Feiss, 266 AD2d 825, supra; Harter v Krause, 250 AD2d 984, supra; Mindich Devs. v Milstein, 227 AD2d 536, supra). The pleadings and the affidavit of Pasquale Pellegrini that were before the lower court, taken together with the amended complaint, were sufficient "to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action" (CPLR 3013). Accordingly, we do not disturb the lower court's denial of defendant's motion to dismiss plaintiff's cause of action based upon quantum meruit.
Rios and Steinhardt, JJ., concur.
Golia, J.P., taking no part.