Hunt v. Contracting & Kitchen Centre,Ltd.

Judgment, Supreme Court, New York County (Ira Gammerman, J., and a jury), entered March 22, 1995, dismissing the action as against the individual defendant, and awarding plaintiffs damages representing the amount they paid the corporate defendant less the sum of the value of defendant’s services and the amount that defendant paid its contractors, unanimously modified, on the law, to designate the judgment as interim in nature, and to remand for further proceedings on the issue of plaintiffs’ claim for reimbursement of amounts they paid to subcontractors, and otherwise affirmed, without costs.

The action was properly dismissed as against the individual defendant since, in the absence of the Connecticut home improvement license he applied for shortly after his engagement by plaintiffs, it cannot be determined whether he was acting in a corporate or individual capacity in performing work on plaintiffs’ home. Moreover, payments by plaintiffs to the corporate defendant indicate that the corporate defendant was the entity authorized to work on plaintiffs’ home.

Since the trial minutes and verdict sheet clearly show that the jury knew to distinguish between the value of the work *121performed by defendant and that performed by its subcontractors, the trial court properly reduced plaintiffs’ refund by the amount defendant paid to the subcontractors. However, the court failed to consider plaintiffs’ breach of contract claim that they paid subcontractors who should have been paid by defendant, and we remand for further proceedings on that issue. Concur — Rosenberger, J. P., Wallach, Rubin and Kupferman, JJ.