Ayres v. Dunhill Interiors, Ltd

In Ayres v. Dunhill Interiors, 138 A.D.2d 303 (1st Dept. 1988) the Court was dealing with an appeal of a determination by the trial court that the work contracted for constituted home improvements, and that the failure of the contractor to hold a license from the City of New York barred recovery of moneys withheld by the owner of the cooperative apartment. The Court remanded the matter for a determination as to whether the owner actually resided in the apartment, or one of the three other units she owned in the same building. In Ayres v. Dunhill Interiors, Ltd., the plaintiff submitted an affidavit stating that she had commenced full-time residence in the subject apartment in June of 1985 and had moved into temporary quarters at 7 East 9th Street (the "other apartment") in January of 1986, because the construction work made it impossible to continue residing at the subject apartment. The plaintiff also stated that she moved back into the subject apartment January of 1987. The First Department reversed the order granting summary judgment in the plaintiff's favor, and criticized the motion court for accepting plaintiff's contention that she was the tenant of the apartment being renovated without a sufficient evidentiary basis having been made out. The Court stated that the defendant submitted proof that plaintiff also owned three other apartments, thereby claiming that plaintiff was not residing in the subject apartment. The Court also noted that the defendant submitted an affidavit stating that contract negotiations always took place at plaintiff's "fully-furnished apartment" at the other apartment and submitted a copy of a Nynex Manhattan telephone directory showing plaintiff's other residence. The evidence submitted was held insufficient to resolve the "question of plaintiff's actual residence." On appeal, the First Department found that the motion court had accepted the apartment owner's contention that she was the tenant of the apartment without a sufficient evidentiary basis. The owner had stated that she had moved into temporary quarters during the period in question. However, the contractor submitted proof that the owner also owned three other apartments on that same block, that all contract negotiations had taken place at the quarters alleged to be "temporary," which in fact were fully-furnished, and that the telephone directory listed that "temporary" apartment as plaintiff's residence for the period in question. In Ayres v. Dunhill Interiors, the unlicensed contractor contended that the plaintiff lived in a different apartment from the one it had worked on and, thus, the plaintiff could not invoke the licensing requirement to defeat the unlicensed contractor's defense. The plaintiff submitted an affidavit stating that she had commenced full-time residence in the subject apartment one year prior to the execution of the contract and had moved into temporary quarters nearby only because the construction work made it impossible to continue residing at the subject apartment. The Supreme Court, Appellate Division, First Department, remanded the case to determine whether the plaintiff was an "owner" within the meaning of the Administrative Code stating, " Should the apartment not be plaintiff's residence, the contract ... would be enforceable despite the defendant's lack of license, because no license is required ... where the work is not for a tenant's residence." ( Ayres v. Dunhill Interiors, 138 AD2d 303, 305, supra.)