In the Matter of McIver-Morgan, Inc., Respondent,v.Christopher Dal Piaz, et al., Appellants.

Brief

N.Y.February 12, 2014

December 12, 2013 B Y F E D E R A L E X P R E S S D E L I V E R Y New York State Court o f Appeals 20 Eagle Street Albany, NewYork 12207 Ret Matter of Mclver-Morgan v. Dai Piaz APL-2013-00282 Dear Sir/Madam: This office represents Christopher Dal Piaz and Elizabeth Schoelkopf, Respondents- Appellants in the above referenced matter, and respectfully submit these written comments and arguments in support of their appeal from the May 9, 2013 Decision and Order of the Appellate Division, First Department' affirming an Order o f the Supreme Court, New York County (Honorable Milton A. Tingling), entered on March 26,2012, which granted a petition by Mclver-Morgan Inc., Petitioner-Respondent, to confimi an arbitration award. Pursuant to your letter dated October 31, 2013 and Section 500.11 of the Court's Rules of Practice, we hereby submit these written comments and arguments in letter form. We also enclose herewith two copies of this letter submission, three copies of the Appellate Division Briefs of all parties, three copies of the Appellate Division Record on Appeal ("R"), a disk containing digital versions of each paper filing, our fimi's check in the amount o f $315.00 to cover the f i l ing fee provided for in Section 500.3 of the Court's Rules o f Practice, and proof of service of one copy of these written comments on the opposing party. 1 In re Mclver-Morgan Inc. v. Dal Piaz. 108 A.D.3d47, 964 N.Y.S.2d 515 (F ' Dept. 2013). New York State Court of Appeals December 12,2013 Page 2 N A T U R E O F T H E C A S E AND R E L E V A N T F A C T S At issue on this appeal is the propriety' o f the lower court's decision confirming an arbitrator's award which directed payment of $134,535.00 to Respondent, Mclver-Morgan, Inc., an entity not licensed to practice architecture, as fees for rendering architectural services to the Appellants - services which Respondent is prohibited, by civil and criminal statutes, from rendering, offering to render, or holding itself out as being able to render, in the State o f New York. Respondent is an interior design firm that advertises and holds itself out to the general public as engaged in the business of providing architectural and design services (R. 38-51), claiming to be "a ful l service firm specializing in all facets of high-end residential interior design and architectural services." (R. 41). Although neither Respondent, nor either of its principals (Rod Pleasants and Steven Godwin), are licensed to render or offer to render architectural services in the State of New York (R. 81, 34:9-25; 35:2-5)', Respondent has been advertising and holding itself out as providing architectural services (R. 81, 35:6-25; 36:2-23), and has been providing such services, since it started business (R. 81, 34:9-12; 36:10-23) some 16 or 17 years ago (R. 80, 33:11-12). Appellants, relying on Respondent" s representations, did, by way o f a written contract dated Apri l 26,2007 (the "Contract") (R. 13-20; 289-296), hire Respondent to provide them with specified architectural services in connection with the renovation of their townhouse, located at 256 West 12* Street New York, New York (the ''Project"). The Contract is a standard agreement drafted and prepared by Respondent (R. 154, 350:15-25; 351:2-5). Pursuant to the Contract, Respondent offered and agreed to provide Appellants with the following architectural services, to be performed in four separate phases, consisting of: preparing a Project schematic design; preparing design development documents; preparing and providing construction documents; and, providing contract administration services and construction monitoring services (R. 14-16, "Scope of Designer's Basic Services"). References are to the transcript pages and lines appearing on the designated page o f the Record. M A S S C I I i D & R i S H M l F F . LLP Altari i r j ' s A l Lm» New York State Court of Appeals December 12,2013 Page 3 The Contract expressly stated and provided that Respondent, Mclver-Morgan, itself m'ould render the contracted-for architectural ser\'ices to be performed thereunder (R. 14-16: 290-292). The Contract contained a provision, which stated as follows: "Consultants including but not limited to a Structural Engineer, a Mechanical Engineer, and a Sur\'eyor may be required during Phase one, two, three and four. Services o f Consultants w i l l be coordinated by the Designer, paid for by the Owner and included in the cost o f Construction." (R. 14; 290). Nowhere did the Contract provide or specify that the services of an architect may be required, it being expressly stated that all architectural services (the subject of the Contract) would be provided and performed by Respondent itself (R. 13-20; 289-296). On August 29,2007, Appellants received an electronic mail communication from one Robert A . Schwartz ("Schwartz"), who introduced himself as the "Architect" working with Respondent's principal. Steven Godwin, on the Project (R. 58), and provided Appellants with two separate proposals for architectural ser\ices to be rendered in connection with the Project for their review (R. 58-62). Upon receipt o f Mr. Schwartz' communication, Appellants, by way of electronic mail dated August 30,2007, inquired of Respondent's principal, Steven Godwin, as to the nature of the services included in Mr. Schwartz' proposals, since, under the Contract. Respondent itself undertook to prepare and provide the architectural drawings and services (R. 64). Rather than inform Appellants that Respondent was not authorized to perform or to render architectural services as set forth in the Contract, Steven Godwin, by way of electronic mail dated September 5,2007, provided Appellants with what he described as a "corrected" agreement, describing Robert Schwartz' services as "expediting" rather than "architectural" in nature, and urged Appellants to sign and return same (R. 327-329).^ An "expediter", otherwise known as "registered filing representative", is a person who is hired by architects and building owners to get pennits for construction and renovation by fillitig out the proper forms with the Buildings Department, filing same and following up the application. See. New York Citv Administrative Code, ^ 416. et seq. MASSOUD & P A S I I O F F , L L P AlirtriM-v. At f,aw New York State Court of Appeals December 12,2013 Page 4 When Appellants, by way of electronic mail dated October 8, 2007, indicated they were considering hiring another, less costly, expediter (R. 331), Respondent, by its principal, Steven Godwin, insisted they hire Robert Schwartz, claiming that he had already secured approval to add extra footage on the upper floors to their Townhouse (R. 331),'* Respondent itself performed and rendered the architectural services required under Phase I of the Contract, consisting of preparing a Project schematic design (R. 408-409). Likewise, Respondent itself performed and rendered al! of the architectural services required under Phase I I o f the Contract, consisting o f the preparation of design development documents (R. 305-310; R. 353-355).' Finally, Respondent itself performed and rendered the architectural services required under Phase 111 of the Contract, consisting of preparing and providing Project constmction documents (R. 428-480).* "̂ For a fee of $2000 and forgiveness of an existing unspecified debt. Respondent hired Robert Schwartz to sign and aff ix his seal to the architectural plans and drawings it prepared since, not being licensed to pracfice architecture, by law it could not do so itself (R. 101, 116:9-25; 117:2-25;R. 102.118:2-25; 119:2-25; 120:2-25; 121:2-25:R. 103,122:2-5; 124:8- 18; R. 108, 144:20-25; 145:2-14; R. 481-482). 4 This representation ulfimately proved to be false when Schwartz himself testified that he never had a pre-consideration meetings with the Department of Buildings conceming the Project (R. I l l , 156:5-8). Upon Appellants' termination of Respondent's services and the hiring o f a new architect, it was discovered that the New York City Landmarks Preservation Commission never approved an extension for the upper two floors of the Townhouse, and the new architect had to prepare new plans for the Project (R. 191, 500:17-25; 501:2-23). 5 As the design development documents clearly show on their face, they were prepared by "McIVER-MORGAN" as the "Proposed Residential Renovations for Elizabeth & Chris Dal Piaz. 265 West 11'*̂ Street. New York. New York 10014". 6 Here, again, the Project constmction documents clearly show on their face, they were prepared by "McIVER-MORGAN" as the "Proposed Residential Renovations for Elizabeth & Chris Dal Piaz. 265 West 11"^ StreeL New York. New York 10014". M A S S O I -—^ i'^-MMm, L L P AttoriM'fg A l Law New York State Court o f Appeals December 12,2013 Page 5 The afore-described arrangement between Respondent and Robert A. Schwartz was never disclosed to Appellants (R. 103, 124:8-18). Appellants, under cover of letter dated Februaiy 28,2008. tenninated the Contract for Respondent's repeated failures to f i i l f i l l its obligations in a timely manner in accordance with the terms of the Contract and the performance schedules it had prepared (R. 407).' As of the date of tennination of the Contract, the Appellants had paid Respondent a total o f $112,500.00 as compensation for services rendered through and including Phase 111 of the Project - although in fact Respondent never completed Phase I I I o f the Contract (R. 213, 614:3-16; R. 23, '\ 9(b); R. 390). Following termination of the Contract, Appellants retained the services of Nicholas Tjartjalis. a licensed architect, to complete the Project (R. 198. 527:22-25, 528:2-18). Upon being hired by Appellants, Mr. Tjartjalis discovered that the plans prepared by Respondent, which included an extension to the two top floors of the townhouse (R. 191. 501:7-14; R. 192.505:20-25;R. 193,506:2-15), had never been approved by the Landmarks Commission, thereby requiring him lo prepare and resubmit new plans for approval (R. 191. 501:15-23). Ultimately, the Project was completed and Appellants moved into their Townhouse sometime in September 2009 (R. 257. 788:25, 789:2-11). T H E A R B I T R A T I O N P R O C E E D I N G By way of a Demand dated September 1,2010, Respondent commenced an arbitration proceeding against Appellants, seeking additional fees of $ 179,520.85 for ''architectural and design services" rendered (R. 52). 7 Pursuant to the terms of the Contract, on August 1. 2007, Respondent provided the Appellants w ith aproposed schedule for completion of the agreed-upon architectural serv ices (R. 315). Having failed to meet the deadlines established by its August 1,2007 schedule, on January 16, 2008, Respondent provided the Appellants with a revised schedule, according to which all architectural plans would be completed, and required approvals obtained, by February 1, 2008, with commencement of actual construction to take place on February 27, 2008 (R. 383-384). Upon Respondent's failure to meet the time limits set forth in its revised schedule. Appellants terminated the Contract (R. 407). I I A S S O C D & PlSHlOFF, L L P Attor iHivs .4t Law New York State Court of Appeals December 12,2013 Page 6 The amount sought by Respondent was pursuant to a provision in the Contract which established compensation as 15% of the Construction Cost (R. 20), and based on an uhimate construction cost of the Project of approximately $2.5 million.^ By way o f a preliminar}' order dated May 31, 2011, the designated Arbitrator ruled that arbitration could go forward notwithstanding the fact that Respondent was not licensed to render architectural services, reasoning that the Respondent's hiring of Robert Schwartz assured that such services would be performed by an appropriately licensed professional, and was not inconsistent with the Contract's provision that other "consultants ... may be required." (R. 53-54). By way ofa Reasoned Award dated October 13,2011, Ralph Steinglass, as designated Arbitrator, mled that Appellants' termination of the Contract was not for cause because the Contract itself did not include a specific date for completion of the Project. The Arbitrator also ruled that, although the Contract provided that Respondent would submit schedules for Appellants' review, the schedules prepared by Respondent were not attached to the Contract and therefore not a part of the Contract (R. 21). The designated Arbitrator, having found that Appellanls had already paid Respondent $112,500.00, and since Phase I I I services were only 75% complete as o f the date of Contract termination because the architectural drawings submitted by Respondent were "incomplete and uncoordinated, and were lacking mechanical and structural engineering drawings", awarded Respondent an additional $116.953.13 in fees based on a Project construction cost o f $2,225,000.00, together with $ 10,669.00 in expenses, with interest at 5% from September 8,2010, for a total award of $ 134,53 5.00 (R. 21 -23). The Arbitrator further ruled that, in the event the award was not paid within thiitv days, interest would accrue at 9% per annum (R. 23). g Under the Contract, a budget of $1 million was established as the construction cost, with adjustments to be made in the event cost was increased (R. 20). Appellants having advised Respondent the total allocated budget for the Project was $1 million (R. 83, 42:23- 25,43:2-13; R. 148,326:14-25). Although, based on its experience. Respondent knew at the outset of the parties' relationship that the Project cost would exceed $2.3 million (R. 162, 385:8-18; R. 163, 387:15-25,388:2-3), it was not undl seven months' into their relationship that it informed Appellants that the construction cost would exceed $2.3 million (R. 349). Thereafter, on November 30,2007, Respondent provided Appellants with its Project bid, in the amount of $2,470,211.00 (R. 357-359), or two and one half times the allocated budget. MASSCI! m t̂ ' - • i - iKBFF, L L P Atfurneys 4t Liiw New York State Court of Appeals December 12,2013 Page 7 P R O C E E D I N G S IN T H E T R I A L C O U R T By way o f a Notice of Petition and Petition dated November 15, 2011. Respondent commenced a proceeding pursuant to CPLR § 7511 in the Supreme Court, New York County seeking to confirm the Arbitrator's award (R. 7-23). By way of an Answer dated December 12, 2011, Appellants opposed Respondent's Petition, contending that the award to Respondent for rendering architectural services was void as against public policy in that Respondent is an entit}' not licensed or authorized to practice architecture in the State of New York, and Respondent providing such services was in direct violation of statutes prohibiting and criminalizing such conduct (R. 24-28). In addition, by way a Notice of Cross Petition dated December 15, 2011, Appellants sought an order, pursuant to CPLR § 7511. seeking to vacate the Arbitrator's award on the ground that it violated the public policy of the State of New York (R. 29-499). The Supreme Court, New York County (Honorable Mihon A . Tingling), by way of an Order dated March 21,2012, granted the Respondent's Petition to confirm the arbitration award, its entire decision consisting of the following: "The petitioner moves to confinn the arbitrator's award and directing entr}' o f Judgment thereon. The respondent opposes the motion. The movant's motion is granted based upon the arguments cited in the moving papers which the court adopts as the reasoning for same. Accordingly the motion to confirm the arbitrator's award is granted. Clerk is directed to enter judgment accordingly." (R. 6). By way ofa Notice of Appeal dated Apri l 11,2011, Appellants appealed the Supreme Court. New York County's Order of March 21, 2012 to the Appellate Division, First Department (R. 4-5). M A S S O U D < H K O F F , L L P klUtrtie'T-^ At i:m% New York State Court of Appeals December 12,2013 Page 8 P R O C E E D I N G S IN T H E A P P E L L A T E D I V I S I O N The Appellate Division, First Department, by way o f a Decision and Order dated and entered on May 9, 2013, affirmed the Supreme Court, New York County's Order of March 21,2012. See,'ln re Mclver-Morgan Inc. v. Dal Piaz. 108 A.D.3d 47. 964 N.Y.S.2d 515 ( f ' Dept. 2013). In affirming the lower court's order, the Appellate Division first stated that, based on the testimony presented during the arbitration hearing, it was apparent that Robert Schwartz recommended substantive changes to the architectural plans prepared by Respondent and, "although his testimony was somewhat equivocal on this point, Schwartz testified that he was 'the architect' for the project." See, Mclver-Morgan Inc. v. Dal Piaz, 108 A.D.3d at 50.*̂ The Appellate Division, comparing enforcement ofthe licensing requirements of New York's Education Law to restrictive covenants found in employment agreements, reasoned that "whether an unlicensed entity offering services regulated by the Education Law may enforce its contract must be decided on a case by case basis" because the provisions in the Education Law requiring a license to practice architecture are not be slavishly applied. See, Mclver-Morgan Inc. v. Dal Piaz. 108 A.D.3d at 52. 9 In fact, as the record unequivocally establishes, during the arbitration hearing, Robert Schwartz insisted that Respondent, and not himself, was commissioned as the architect on the Project (R. 106, 137:9-25; R. 107, 138:2-25; 139:2-22; R. 113, 163:15-25). Likewise, by way of electronic mail dated Apri l 14,2008, Robert Schwartz maintained, and specifically stated to AppeUants "... understand that you hired me as your expeditor only, not as the architect for this projecf [emphasis in original electronic mail message] (R. 405). Indeed, Robert Schw artz acknowledged that he never prepared any evaluations of the architectural draw ings, never prepared any performance specifications with respect thereto, and never kept copies of any such plans (R. 104. 126:17-25, 127:2-25. 128:2-25. 129:2-25; R. 105, 130:2- 17) as required by NYSDE Regents Rule. § 29.3(a)(3). which mandates that a licensee who signs and seals documents not prepared by himself must prepare and retain for a period o f not less than six years copies of same, together with a thorough written evaluation of the professional ser\dces represented by the documents, which shall identify the project and the documents to which it relates, the source of the documents and the name o f the person or organization for which the written evaluation was conducted, the date of the evaluation, and his seal and signature affixed thereto. M A S S O I : H I O F I ; L L P New York State Court of Appeals December 12. 2013 Page 9 The Appellate Division, after discussing decisions rendered by this and other courts, including this Court" s decision in Charlebois v. J. M . Weller Associates, Inc., 72 N . Y.2d 587, 592, 531 N.E.2d 1288. 535 N.Y.S.2d 356 (1988). its own decisions in Greenberg v. SNA Consultants. 55 A.D.3d 418,866 N.Y.S.2d 115 ( D e p t . 2008) and SKR Design Group. Inc. V . Yonehama. Inc.. 230 A.D.2d 533, 660 N.Y.S.2d 119 Dept. 1997), and the Second Department's decision in P.C. Chipouras & Assoc. v. 212 Realty^ Corp.. 156 A.D.2d 549,549 N.Y.S.2d 55 (2""̂ Dept. 1989), concluded as follows: "This case falls somewhere between those cases where an unlicensed entity unquestionably did all o f the architectural work itself, and those where all o f the architectural work was legitimately performed by a licensed architect. However, that is the verv' reason why vve may not interfere with the arbitration award, since we may not "engagle] in extended factfinding or legal analysis" before declaring that an arbitration award violates public policy (intemal citations omitted). Given that Schwartz's involvement, at the very least, raises a serious question as to whether Mclver satisfied the spirit o f the Education Law. vve would have to engage in such a review of the factual record to reach that conclusion." See. Mclver- Morgan Inc. V. Dal Piaz. 108 A.D.3d at 54. The Appellate Division noting that, " in supervising Queral's [Respondents' employee] preparation of the architectural plans and insisting that his changes be adopted, in addition to his signing and sealing of the architectural draw ings, it is clear to us that Schwartz had a substantive, active role in the provision of architectural services'", affirmed the lower court's order confinuing the arbitration award. See, Mclver-Morgan Inc. v. Dal Piaz. 108 A.D.3d at 54. Based primarily on this Court's decision in Charlebois. and the reasoning and opinion expressed therein, we respectfully urge and request that this Honorable Court reverse the Decision and Order made and entered by the Appellate Division, First Department on May 9. 2013. I I A S S O L D <4 - • ' • H K O F F , L L P Alt«»r!ie%'s At Law New York State Court of Appeals December 12,2013 Page 10 A R G U M E N T The dispositive facts of this case are not in dispute, and are conclusively established by the documentary evidence. Specifically, neither Respondent. Mclver-Morgan Inc., nor either of its two principals, Rod Pleasants and Steven Godwin, are licensed to practice architecture in the State o f N e w York. Notwithstanding, Respondent, Mclver-Morgan Inc., advertises and holds itself out to the public as being engaged in the business of providing architectural services, and has in fact been providing architectural services from the date it first started business more than 16 or 17 years ago. By way o f a written agreement dated as of Apri l 26,2007, Respondent contracted for itself to provide Appellants wdth specified services, consisting, exclusively, of: preparing a project schematic design; preparing design development documents; preparing and providing construction documents; and, providing contract administration services and construction monitoring services in connection with the Project. That the services which Respondent, Mclver-Morgan Inc., contracted for itself to provide to Appellants are purely architectural in nature is not in dispute. Specifically, the services at issue are specifically defined by Education Law § 7301 as constituting the practice of architecture, which statute provides as follows: 'The practice of the profession of architecture is defined as rendering or offering to render services which require the application of the art, science, and aesthetics of design and construction of buildings, groups of buildings, including their components and appurtenances of the spaces around wherein the safeguarding of life, health, property and public welfare is concemed. Such serV'ices include, but are not limited to consuhation. evaluation, planning, the provision of preliminarv' studies, designs, construction documents, construction management, and the administration of construction contracts." Moreover, the courts have consistently and repeatedly found that the services which Respondent contracted for itself to provide to Appellants are archhectural in nature. See. Marshall-Schule Associates v. Goldman. 137 Misc.2d 1024, 1028, 523 N.Y.S.2d 16 (Civ. CL 1987); Greenberg v. SNA Consuhants. 55 A.D.3d 418, 866 N.Y.S.2d 115 ( f DepL 2008); P.C. Chipouras & Assoc. v. 212 Realty Corp.. 156 A.D.2d 549, 549 N.Y.S.2d 55 (2"'' DepL 1989); Park Avenue & 35"' Street Corp. v. Piazza. 170 A.D.2d410, 566N.Y.S.2d297 (P'DepL 1991). M A S S O U D & P A S H K O F F , L L P Alti»rin-ys A l La»» New York State Court of Appeals December 12,2013 Page 11 As concems the services rendered pursuant to the Contract at issue, there is no dispute they were performed by Respondent, Mclver-Morgan Inc. and its employees, who prepared all of the schematic design plans, the design development documents and plans, and all the construction documents and drawings, to which Respondent" s name was prominently affixed thereto. Likewise, there is no dispute that, in exchange for a fee of $2000 and forgiveness of an existing unspecified debt, Respondent, Mclver-Morgan Inc., hired Robert A. Schwartz to sign and aff ix his seal to the architectural plans and drawings it prepared since, not being licensed to practice architecture, by law it could not do so itself Finally, there is no dispute that Respondent's arrangement with Robert Schwartz was never disclosed to Appellants. As concems applicable law , there can be no dispute that the practice of architecture by unlicensed individuals or entities is proscribed and prohibited by both civil and criminal statutes in the State o f N e w York. Specifically, Education Law § 7302 provides, in no uncertain terms, as follows: "Only a person licensed or otherwise authorized to practice under this article shall practice architecture or use the title 'architect".'' Likewise, New York's interest in prohibiting the practice of architecture by unlicensed persons is of such importance that the legislature enacted Educafion Law $6512. imposing criminal liability upon any unlicensed person who practices, offers to practice, or holds him- self out as being able to practice the profession of architecture, which statute provides, in relevant part, as follows: " 1 . Anyone not authorized to pracfice under this title who practices or offers to pracfice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice ofthe acts, or who practices any profession as an exempt person during the time when his professional license is suspended, revoked or annulled, or who aids or abets an unlicensed person to practice a profession ... shall be guilty o f a class E felony." M A S S O U D < 5:U I I I O F F , L L P New York State Court of Appeals December 12,2013 Page 12 As a preliminar}- matter, as this Court itself stated in its Charlebois decision, so strict are licensing requirements, particularly in areas affecting life, health and property, that i f an unlicensed entity "either contracted itself to engage or actually engaged in the practice of engineering, then the licensing proscription would surely have been violated with grave contractual and criminal consequences (see, e.g., Education Law § 6512). We recognize, of course, that when a record establishes substantial performance of a contract, the absence of an appropriate license bars recover}' on an agreement, as 'the purpose of the regulator}' scheme is to protect the public health and safety' (Richards Conditioning Corp. v Oleet, 21 NY2d 895, 896: see also, Johnston v Dahlgren, 166 NY 354; and People ex rel. Nec/mmcus v Warden, 144 NY 529). Id. at 592-593. The acts which this Court stated were prohibited in its Charlebois decision are exactly those in which Respondent Mclver-Morgan Inc. engaged, to wit: it not only contracted itself to engage, but actually engaged, in the practice of architecture without a license. The question presented, then, is whether Respondent's retention of Robert Schwartz to aff ix his seal and signature to the architectural documents and plans which it prepared was sufficient to satisfy the statutorv scheme specillcally enacted by the New York Legislature for the protection of public health and safet}'. As a preliminary matter, it cannot be seriously argued that Respondent's payment o f $2,000.00 to Robert Schwartz to aff ix his signature and seal on the architectural plans and documents prepared by Respondent rendered them his "work producf". This is particularly true given the fee amount Respondent paid to Robert Schwartz ($2,000.00) in comparison with the total fees for the architectural services paid by the Appellants together with those awarded by the Arbitrator ($247,035.00). More importantly. Respondent's payment of $2,000.00 to Robert Schwartz to aff ix his signature and seal on the architectural plans and documents it prepared does not satisfy the purposes of the Education Law because, as this Court specifically stated in its Charlebois decision. XHASSOLI) & P A S H K O F F , L L P Atlm*rti''\^ At l.aw New York State Court o f Appeals December 12. 2013 Page 13 "So strict has been judicial construction of the statutory requirement through concern for the public health and welfare that the requirement may not be satisfied by employing or subletting' the work to an appropriately licensed person (Vitanza V City ofNew York, 48 AD2d 41, 44 [Marcus G. Christ, J.] [citations omitted], a f f d on apn below 40 NY2d 872). Where the company performing the work is not licensed, it is precluded from recovering for the work performed either pursuant to contract or in quantum meruit {see, Richards Conditioning Corp. V Oleet, supra, at 896-897; Hamtnerman v Jatnco Indus., 119 AD2d 544, 545: George Piersa, Inc. v Rosenthal, 72 AD2d 593)." Id at 592-593. Indeed, Respondent Mclver-Morgan Inc.'s hiring of Robert Schwartz to sign and seal the architectural plans and documents which it prepared was nothing more than an attempt to circumvent the express requirements of Education Law § 7307, for without his seal and signature on those documents and plans, they would not have been accepted for filing by the Department of Buildings. In other words, the Respondent's payment of $2,000.00 to Robert Schwartz to aff ix his signature and seal on architectural plans and documents prepared by the unlicensed entitv' is itself an act prohibited by law, and was undertaken in furtherance of the Respondent's initial violation ofthe specific statutory' scheme enacted by the New York State legislature. In that respect, it is well-settled that the statutory scheme reflected in the Education Law was specifically enacted in furtherance o fNew York's strong public policy and interest to safeguard life, health and protect property, which enactments the courts have found to be a legitimate exercise of its inherent police power. Bowen v. City of Schenectady. 136 Misc. 307"̂ 310, 240 N.Y.S. 784 (Sup. C t 1930), affd2?>\ A .D . 779 (3'"'' DepL 1930): People v. Merriweather. 135 Misc.2d 998, 516 N.Y.S.2d 893 (Dist. C t Nassau Co.. 1987). The importance and significance of such public policy is best illustrated by the fact that where licensing requirements are involved, the courts have been adamant in their refusal to permit recovery' under a contract to perform work where the person performing the work is not licensed to do so, the existence of the license being a condition precedent to recovery. Johnston v. Dahlgren. 166 N.Y. 354, 59 N.E.2d 987 (1901); Charlebois v. J. M . Weller Associates. Inc.. 72 N.Y.2d 587, 592, 531 N.E.2d 1288. 535 N.Y.S.2d 356 (1988) Nu-Brass Plumbing & Heating v. Wiener. 29 A.D.2d 172 (1^' Dept 1968); Vitanza v. City of New York, 48 A.D.2d 41, 367 N.Y.S.2d 820 (2'"^ Dept. 1975), affdAQ N.Y.2d 872. 356 N.E.2d M A S S O D D < i l O f F , LLP AllurrH-vs 4 l l.av. New York State Court o f Appeals December 12,2013 Page 14 1232, 388 NY.S.2d 273 (1976); Richards Conditioning Corp. v. Oleet. 21 N.Y.2d 895,236 N.E.2d 639. 289 N.Y.S.2d 411 (1968). Finally, it should be noted that the Appellate Division's obser\'ation that "the parties' agreement sufficiently notified the Owners that [Respondent] might retain outside contractors to provide professional services", and that there "is no basis for the Owners to argue that the non-exhaustive list o f professionals named in that provision excluded architects such as Schwartz", misinterprets and misapplies this Court's Charlebois decision. See, In re Mclver- Morgan Inc. v. Dal Piaz. 108 A.D.3d at 54-55. Specifically, in upholding the validity of the agreement at issue in the Charlebois case, this Court noted that, not only did the contractor in that case: "«o? agree to draft the designs for which an architectural or engineering license would be required as American Store did in the case so heavily relied upon by appellants. Instead, the design functions were contracted for and actually performed by a named licensed engineer, as the Charleboises agreed and expected under their contract. Pursuant to that arrangement, James M . Weller, P.E., was not acting in the capacity of an employee of the business corporation, but acted as a professional licensed engineer obligated by contract to exercise his professional judgment in the interests o f the public health and welfare, and independent in that sense of unlicensed oversight. In fu l f i l l ing the independent professional role in this case, James M . Weller, P.E., was also subject to the plenary regulation of the State Education Department. Indeed, insofar as the professional obligation owed by Weller, P.E., is derived from the contract itself, at issue here, the professional services could not have been perfonned by Weller Assocs. and it was the independent professional judgment of James M . Weller, P.E., which flowed directly to the Charleboises. This is sufficiently consistent with the public policy sought to be served by the statute and the cases, without the ultimate sanction of voiding an otherwise valid and fulf i l led contract." Id. at 594. New York State Court of Appeals December 12.2013 Page 15 In the instant case, however, not only did the Contract not mention that the services of a licensed architect may be retained - considering that the only services to be provided were architectural in nature, but when Appellants inquired as to the nature o f the services to be provided by Robert A. Schwartz, they were specifically advised by Respondent he would be retained solely as an expediter, and not as an architect. In that respect, when presented with the opportunity' to provide disclosure as to Robert Schwartz' role. Respondent chose not to make such disclosure, but rather intentionally misrepresent the facts to Appellants. Based on the foregoing, it is respectfully submitted by Appellants that the Arbitrator's award directing payment of $ 134.535.00 to Respondent, Mclver-Morgan, Inc., an entity not licensed to practice architecture, as fees for rendering architectural services to Appellants, violates the public policy of the State o f N e w York and should not have been confirmed by the trial court, or affirmed by the Appellate Division, First Department. cc: Edward S. Feldman, Esq. FELDMAN & ASSOCIATES, PLLC Attomeys for Respondent Mclver-Morgan, Inc. 33 East 33 '̂' Street Suite 802 New York, New York 10016 (By electronic mail & regular mail) C O N C L U S I O N By X h r t i ^ 4 - Massoud. L.^q. Attorneys for Appellants"thristopher Dal Piaz and Elizabeth Schoelkopf M A S S O L I ) t\ I'-'HMWF, L L P .4lt«>ri!eys At Law