[783 NYS2d 741]

#### Power Cooling, Inc., Respondent, v Linda Wassong et al., Appellants.

Supreme Court, Appellate Term, First Department,

July 9, 2004

APPEARANCES OF COUNSEL

*Peter Klose,*White Plains, for appellants. *Noel*W *Hauser & Associates,*New York City, for respondent.

OPINION OF THE COURT

Per Curiam.

Order entered July 10, 2002 affirmed, with $10 costs.

*23The plaintiff, an unlicensed subcontractor, installed four heating and air-conditioning units in the subject apartment pursuant to a written contract and seeks to recover the contract price from the subcontractor and homeowner. The defendant homeowner (Wassong) sought summary judgment dismissal upon the ground that the unlicensed plaintiff performed a covered home improvement requiring a license.

The motion court correctly concluded that plaintiff s installation of the room air-conditioners in defendant Wassong’s apartment did not, in itself, constitute a “home improvement” within the definition of Administrative Code of the City of New York § 20-386 (2). Although the City Council specifically included the installation of “central heating or air conditioning systems” in the list of items qualifying as a home improvement, it conspicuously omitted any mention of individual air-conditioners from that list *(see*Administrative Code § 20-386 [2]). Thus, applying the interpretive canon of expressio unius est exclusio alterius, an “irrefutable inference” must be drawn that the City Council intended to exclude the installation of room air-conditioners as a home improvement *(see generally,*McKinney’s Cons Laws of NY, Book 1, Statutes § 240; *New York City Council v City of New York, 4*AD3d 85 [2004]).

Nor is the drastic remedy of summary judgment otherwise warranted on this thin, prediscovery record, which raises mixed questions of law and fact concerning the type and extent of the ancillary work undertaken by plaintiff and whether such ancillary work qualifies as a home improvement *(see Raywood Assoc. v Seibel,*172 AD2d 154 [1991]). Defendant Wassong’s sparse submission on the licensing issue in her moving papers below— addressing via an attorney’s affirmation only the conceded fact that plaintiff lacked a home improvement license — was clearly insufficient to meet her initial burden to prove entitlement to judgment as a matter of law *(see, Winegrad v New York Univ. Med. Ctr.,*64 NY2d 851 [1985]). The affidavit submitted by defendant Wassong with her reply papers is not properly considered, “since it sought to remedy these basic deficiencies in [her] prima facie showing rather than respond to arguments in plaintiffs opposition papers” *(Migdol v City of New York,*291 AD2d 201 [2002]).

In any event, even assuming the accuracy of defendant Was-song’s statements in her reply affidavit concerning the additional work performed by plaintiff, we cannot abide the conclusion that the additional work was sufficient to bring this *24contract within the scope of a covered home improvement as a matter of law. *Coggeshall Painting & Restoration Co. v Zetlin*(NYLJ, May 25, 1999, at 26, col 1 [App Term, 1st Dept], *affd*282 AD2d 364 [1st Dept 2001]) is instructive. The plaintiff therein had performed painting and carpentry work for the defendant homeowner, who withheld payment upon the ground that the plaintiff was unlicensed as a home improvement contractor. Painting is generally excluded as a home improvement and the factual issue was whether the carpentry and tile work, which amounted to in excess of $12,000, brought it within the coverage of the home improvement ordinance. The Appellate Division, affirming this court, gave “due deference” to the trier of fact in determining that the additional work was merely incidental to the painting and that the licensing requirements were not triggered. Similarly, it is a question of fact here whether the incidental work necessary to install the individual heating and air-conditioner units constituted a covered home improvement.

As the Court of Appeals stated in interpreting Labor Law § 240 (1), “we are concerned that allowing every change in a structure to qualify as an alteration gives the statute too broad a reach” *(Joblon v Solow,*91 NY2d 457, 464 [1998]). We are similarly concerned that every change, particularly when necessary to install an addition that is not covered, should be considered a covered home improvement.

The dissent misstates the majority position. The installation of a noncentral air-conditioner is not covered by the ordinance. The issue is whether the incidental and necessary work to complete such an installation constitutes a home improvement. The majority position is that it is a triable issue precluding summary judgment and the dissenter’s position is that it is a legal issue mandating summary judgment.

With respect to the defendant subcontractor (Techne & Associates), summary judgment dismissal is similarly unwarranted, since there exist triable issues of fact concerning the nature of the contractual dealings, if any, between the subcontractor and plaintiff.

Suarez, P.J.

(dissenting in part). The issue on this appeal is

whether plaintiff, which concededly did not have a home improvement license when it did the subject work, performed a “home improvement” as defined in Administrative Code of the City of New York § 20-386 (2) when it installed four through-*25the-wall air-conditioning units in Wassong’s residential apartment. The installation required disconnecting and removing radiators in four separate rooms, capping existing pipes and installing new pipes, as well as cutting through several interior walls and the exterior stone masonry. This is established by documents *submitted by plaintiff*as exhibits with the opposition to the motion and is *undisputed.*I find as a matter of law that this work constituted “home improvement,” requiring plaintiff to plead and prove that it possessed a license at the time it performed such work. *(See, B & F Bldg. Corp. v Liebig,*76 NY2d 689 [1990].)

The ordinance reads as follows:

> “ ‘Home improvement’ means the construction, repair, replacement, remodeling, alteration, conversion, rehabilitation, renovation, modernization, improvement, or addition to any land or building, or that portion thereof which is used or designed to be used as a residence or dwelling place and shall include but not be limited to the construction, erection, replacement, or improvement of driveways, swimming pools, terraces, patios, landscaping, fences, porches, garages, fallout shelters, basements, and other improvements to structures or upon land which is adjacent to a dwelling house. ‘Home improvement’ shall not include (i) the construction of a new home or building or work done by a contractor in compliance with a guarantee of completion of a new building project, (ii) the sale of goods or materials by a seller who neither arranges to perform nor performs directly or indirectly any work or labor in connection with the installation of or application of the goods or materials, (iii) residences owned by or controlled by the state or any municipal subdivision thereof, or (iv) painting or decorating of a building, residence, home or apartment, when not incidental or related to home improvement work as herein defined. Without regard to the extent of affixation, ‘home improvement’ shall also include the installation of central heating or air conditioning systems, central vacuum cleaning systems, storm windows, awnings or communication systems.” (Administrative Code § 20-386 [2].)

I disagree with the contention of the majority that “[t]he installation of a noncentral air-conditioner is not covered by the *26ordinance.” (Majority op at 24.) The specific exclusions cited in the ordinance are clearly not applicable to this matter. The ordinance states affirmatively that central heating or air-conditioning systems, etc., *constitute*“home improvement” *“without regard to the extent of affixation.”*(Emphasis supplied.) The majority has incongruously determined that language which clearly evinces an intent to *expand*the coverage of the ordinance may actually limit such coverage. It is inappropriate to imply a limitation in a statute or ordinance, thereby giving it a meaning not found in its clear language *(see,*McKinney’s Cons Laws of NY, Book 1, Statutes § 94). Had the New York City Council intended to exclude the installation of individual room air-conditioners, it presumably would have done so in clear and explicit terms in the second sentence of the ordinance, which lists specific work that does not constitute a “home improvement” (compare, Conn Gen Stat Ann § 20-419 [expressly excluding from the definition of home improvement “the sale of appliances, such as . . . room air conditioners and others which are designed for and are easily removable from the premises without material alteration thereof’]). I find that the mere failure to mention through-the-wall air-conditioning units in Administrative Code § 20-386 (2) does not remove the extensive work performed in this case from the ambit of the ordinance. The work herein clearly exceeded the mere “installation of appliances.” *(Cf., Raywood Assoc. v Seibel,*172 AD2d 154 [1st Dept 1991], relied upon by the majority.)

Nor do I find *Coggeshall Painting & Restoration Co. v Zetlin*(NYLJ, May 25, 1999, at 26, col 1 [App Term, 1st Dept], *affd*282 AD2d 364, 365 [1st Dept 2001]) instructive, as does the majority herein. The findings of fact in *Coggeshall,*as affirmed by the Appellate Division, establish “that the *limited*carpentry work undertaken by plaintiff was *decorative in nature and incidental*to the extensive preparation, painting and refinishing work performed by plaintiff on defendant’s duplex apartment.” *(Id.*at 364-365; emphasis supplied.) The majority concedes that the work performed here was necessary to complete the installation of the heating and air-conditioning units. (Majority op at 23.) The finding that the work was necessary, and not merely incidental, militates in favor of application of the ordinance, not against it.

Plaintiffs noncompliance with the licensing ordinance does not, however, preclude it from seeking recovery on the agreement from Techne & Associates, Inc., which apparently served *27as the general contractor for the renovation work *(see, Matter of Kuchar v Baker,*261 AD2d 402 [2d Dept 1999]; *Corcoran Marble Co. v Clark Constr. Corp.,*155 Misc 2d 49 [App Term, 1st Dept 1993]). The argument that there was no privity of contract between defendant Techne & Associates, Inc. and the plaintiff, raised for the first time in Techne’s reply papers on the motion for summary judgment, is not properly considered on appeal *(see, Meade v Rock-McGraw, Inc.,*307 AD2d 156, 159 [1st Dept 2003]). The record raises factual issues as to the nature of the relationship between Techne and the plaintiff and as to whether Techne engaged plaintiffs services, which provides further bases for denial of Techne’s motion for summary judgment.

I respectfully dissent, in part. While I agree with the majority that Civil Court properly determined that summary judgment should be denied with respect to defendant Techne & Associates, Inc., I would modify the order appealed from to the extent of granting summary judgment in favor of defendant Linda Wassong.

The order appealed from should be modified to grant defendant Linda Wassong’s motion for summary judgment and otherwise affirmed.

McCooe and Gangel-Jacob, JJ., concur; Suarez, EJ., dissents in part in a separate memorandum.