Charlebois v. J.M. Weller Associates, Inc.

72 N.Y.2d 587 | NY | 1988

Lead Opinion

OPINION OF THE COURT

Bellacosa, J.

Claude and Lesley Charlebois contracted with J.M. Weller Associates, Inc. (Weller Assocs.) for a new warehouse and an addition to an existing building from which the Charleboises operate their beer distributorship business. The contract, a standard agreement of the Associated General Contractors of America, called for a construction team consisting of contractor Weller Assocs., the owners Charleboises, and an architect-engineer, James M. Weller, P.E.

After construction was started, disputes (not the subject of the present action) arose between the parties over cost, design, building code compliance, and other alleged defects. The Charleboises refused to make further payment, allegedly leaving $600,000 in construction costs owed, until the disputes were resolved to their satisfaction. Pursuant to the contract, Weller Assocs. demanded arbitration. The arbitration proceeding was adjourned after the Charleboises instituted this action seeking a declaration that their contract was invalid as against public policy because it violated Education Law §§ 7202 and 7209 (4). The Charleboises also sued James M. Weller, P.E., an action not n,ow before us.

On cross summary judgment motions, the lower courts ruled in favor of Weller Assocs. that the contract was valid and the appeal is now before us on a two-Justice dissent at the Appellate Division. We affirm because this contract, with its express requirement for a separately retained licensed professional engineer to perform the design function, does not violate the pertinent Education Law licensing protections or the public policy which underlies them.

Supreme Court found that the contract required the engineering services by James M. Weller, P.E., that he was indisputably a duly licensed professional engineer, and that the policy sought to be protected by the Education Law provisions was adequately addressed by contractor Weller Assocs. engaging a properly licensed person, James M. Weller, P.E. The contract provided that the services of an "Architect/Engineer will be furnished by the Contractor pursuant to an agreement between the Contractor and the Architect/Engineer;” that "all Architectural & Structural Engineering services are provided by James M. Weller P.E.;” and that the contractor would "furnish the architectural, engineering and construction services”.

The Appellate Division majority, in affirming, added: "[defendant [Weller Assocs.] herein did not agree to perform architectural or engineering services; rather, plaintiffs and defendant agreed that a licensed third party would perform those services” (136 AD2d 214, 216). The dissent countered that a design-build contract of this kind would permit the contractor to become a "package dealer,” resulting in the frustration of the public policy behind the Education Law licensing requirement.

We are faced with a narrow question of whether this contract, entered into between the Charleboises and Weller Assocs., the latter being an unlicensed business corporation building contractor, should be declared invalid as against public policy when the parties concomitantly provided that the project design had to be fulfilled by the builder by engaging a specified licensed engineer. We hold that the contract is not void because, under the contractual arrangements of the parties, acknowledged by the lower courts- and verified independently in the record by plaintiffs themselves and by their separate lawsuit against James M. Weller, P.E., this does not constitute the unauthorized practice of engineering by the builder. Critically here, the engineer actually engaged to do the professional work is inescapably subject to the educational, regulatory and punishment mechanisms of the licensing entity, the State Education Department, without any necessity for him to have been a formal, technical signatory to the contract (Education Law §§ 7205, 7206, 6508, 6509; 8 NYCRR 29.1, 29.3).

Education Law § 7202 provides that "[o]nly a person licensed or otherwise authorized under this article shall practice engineering or use the title 'professional engineer’ ”. Only a professional corporation exclusively comprised of persons licensed to provide designated professional services may contract to engage in the practice of engineering (see, Education Law § 7209 [4]; Business Corporation Law art 15). Such professional corporations shall not "engage in any business other than the rendering of the professional services for which it was incorporated” (Business Corporation Law § 1506). Weller Assocs. is a business corporation, not a professional corporation, and as such is not qualified to practice engineering nor subject to the regulatory or disciplinary oversight of the State Education Department. Conversely, James M. Weller, P.E., is prohibited from engaging in the contracting trades while employing that professional suffix.

If defendant Weller Assocs. 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 recovery on an agreement, as "the purpose of the regulatory 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. Nechamcus v Warden, 144 NY 529). "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 of New York, 48 AD2d 41, 44 [Marcus G. Christ, J.] [citations omitted], affd on opn 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; Hammerman v Jamco Indus., 119 AD2d 544, 545; George Piersa, Inc. v Rosenthal, 72 AD2d 593).

On the other hand, these cases do not erect an absolute or per se rule. For example, an exception to the all-or-nothing decisional sanction tied to this statutory licensing prerequisite was recognized early in Bronold v Engler (194 NY 323). There, a builder who himself lacked a statutorily required license was allowed to contract for completion of a structure, including work requiring licensure, if a properly licensed party was retained to perform the regulated work. The builder "would in such case in no fair sense be conducting the [licensed] 'trade, business or calling’ * * *. It would be the mere incident of a larger work” (id., at 325 [emphasis added]; Vitanza v City of New York, supra, at 45).

In the instant case, application of the pertinent principles satisfies the public policy concerns underlying Education Law §§ 7202 and 7209 because of the contract’s express requirement here that the contractor engage a specified licensed person or professional corporation to perform the tasks for which the law specifically requires a license (see, Vereinigte Osterreichische Eisen und Stahlwerke v Modular Bldg. & Dev. Corp., 64 Misc 2d 1050, mod on other grounds 37 AD2d 525). In that case, the court said:

"It cannot be * * * that an entire contract comprehending many services to be performed, including those calling for the services of licensed professionals, can be stricken because the party furnishing the services is not itself a licensed professional.

"To hold otherwise would mean that * * * builders and general contractors would likewise be incapable of enforcing their contracts because architectural and engineering skills are incidentally involved. * * *

"The rights sought -to be protected by the statute are adequately covered when the contractor, manufacturer or builder engages a properly licensed person to perform those tasks which the law specifies call for certified skills.” (Id., at 1051.)

Plaintiffs-appellants, the dissenting Justices at the Appellate Division, and the dissenters in this court place significant reliance on American Store Equip. & Constr. Corp. v Dempsey’s Punch Bowl (174 Misc 436, affd without opn 258 App Div 794, affd without opn 283 NY 601). There, an unlicensed business corporation contracted for itself to prepare architectural plans and then for itself to remodel a building according to those plans. We, of course, agree that this direct, otherwise unsanctionable, violation of public policy warranted withholding recovery from the offending contractor, but it has no persuasive or binding force on the very different commercial transaction and contractual relationships in this case.

Here, the contractual scheme survives the statutory and precedential prohibitions governing professional occupations for which a license is necessary, and specifically requires an independent licensee to perform the regulated services. Weller Assocs. did not 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 of the public health and welfare, and independent in that sense of unlicensed oversight. In fulfilling 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 performed 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 fulfilled contract.

Neither a fair reading of the contractual arrangement nor the regulatory scheme designed to protect an important public policy would support a view that Weller Assocs. agreed for itself to engage or actually engaged in the practice of engineering. That is what the Education Law forbids under these circumstances. The design in this case as part of the over-all project was performed lawfully by a licénsed professional.

Even if a violation were to be hypothesized for the sake of argument, the public policy that underlies the statute would not be furthered by complete avoidance of this contract. It cannot be overlooked that the Charleboises did not allege anywhere or argue anywhere, as is their burden as plaintiffs seeking to void the contract, the nonexistence of the expressly contemplated implementation by James M. Weller, P.E. Indeed, they virtually concede that James M. Weller, P.E., actually completed the work. Surely they would have, had that been the state of affairs as the dissent implies. Also, respondent urges that the Charleboises’ attorney prepared this contract; the record shows that the Charleboises have reaped the fruits of that contract by currently occupying the completed structures and operating their business from it; and they now seek to disaffirm that very contract and be forgiven $600,000 in payments for services and work completed and delivered to them.

A further response to the dissent is that the absolutism of its approach to this case as to the public policy enforcement mechanism ignores the plain and concededly commercial realities of the arm’s length transaction between the Charleboises and Weller Assocs., and would impose a disproportionate and unnecessary remedy and price. This overly broad interpretation would also unnecessarily have the effect of disenfranchising a fully regulated professional engineer from participating in a commercial transaction of this nature. In this case, the regulatory sanctions reinforced by the potential civil malpractice liability quite complementarily and proportionately protect the underlying public policy and certainly more than adequately protect the plaintiffs-appellants Charleboises.

Finally, forfeitures by operation of law are strongly disfavored as a matter of public policy and the Charleboises’ efforts to use that concept as a sword for personal gain rather than a shield for the public good should not be countenanced in the name of the Education Law public policy, slavishly applied. The legislative objective, after all, is professional performance —a matter of substance — not the vehicle of professional performance — a matter of form.

The remaining arguments raised by appellants are either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

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Dissenting Opinion

Alexander, J.

(dissenting). In my view, the "design-build” contract at issue, under which J.M. Weller Associates, Inc. (J.M. Weller) — a business corporation not licensed under article 15 of the Business Corporation Law to practice engineering or architecture — agreed to furnish architectural, engineering, and construction services to the owners, Claude and Lesley Charlebois, clearly violates the public policy of New York State and should be declared void and unenforceable. Furthermore, I believe that by sanctioning this contractual arrangement, the majority does violence to the comprehensive professional licensing scheme enacted by the Legislature and frustrates the long-standing policy of this State prohibiting the indirect rendering of professional services by unlicensed business corporations. Accordingly, I respectfully dissent.

In order to protect the life, health and property of New York State citizens, the Legislature has enacted a comprehensive licensing scheme regulating the rendering of professional services to the public (American Store Equip. & Constr. Corp. v Dempsey’s Punch Bowl, 174 Misc 436, affd 258 App Div 794, affd 283 NY 601; see, People v Merriweather, 135 Misc 2d 998, 1000; Wineman v Blueprint 100, 75 Misc 2d 665, 666). Under the statutory scheme, only persons licensed as architects or engineers may practice those professions (Education Law §§ 7202, 7302) and "[ajnyone not authorized to practice * * * who practices or offers to practice or holds himself out as being able to practice” architecture or engineering is guilty of a class E felony (Education Law § 6512).

Article 15 of the Business Corporation Law prescribes the exclusive means by which professionals may practice in the corporate form. A professional service corporation must have attached to its certificate of incorporation "a certificate or certificates issued by the licensing authority certifying that each of the proposed shareholders, directors and officers is authorized by law to practice” the particular profession (Business Corporation Law § 1503 [b]). Moreover, such corporation may not "engage in any business other than the rendering of the professional services for which it was incorporated” (Business Corporation Law § 1506). Conversely, a corporation not licensed to render professional services may not do so unless specifically authorized by statute, either because it is expressly permitted to retain licensed professionals for this purpose (see, e.g., Education Law §§ 6808 [pharmacy], 7106 [optometry], 7122 [ophthalmic dispensing], 7802 [massage]), or because it practiced the profession at a time when such practice was authorized by law (see, Education Law § 7209 [6] [engineering]; § 7307 [4] [architecture]).

It is undisputed that J.M. Weller is not licensed as a professional architectural and engineering corporation, it does not enjoy the benefit of any special statutory authorization to practice those professions through licensees, and it is not a "grandfathered” corporation under the relevant statutory provisions. Nevertheless, the majority concludes that the "design-build” contract does not offend the State’s public policy because it provides that a licensed professional engineer will perform all architectural and engineering services.¹ As explained below, by improperly focusing exclusively on who performs the professional services, the majority permits unlicensed contractors to circumvent the statutory scheme and thereby accomplish exactly what the Legislature has declared impermissible.

The majority’s unduly restrictive view of the public policy concerns underlying the licensing statutes is most disturbing. These concerns are clearly not adequately protected merely because the contract requires that the architectural and engineering services be performed by a licensed professional. Bare "performance” in some otherwise undisclosed and undefined manner is manifestly insufficient where, as here, the licensed professional is also president of the unlicensed business corporation and, presumably, is beholden to that profit-motivated commercial enterprise. The purpose of a license goes beyond merely ensuring that the services will be performed by a professional; a license is intended also to guarantee that any services performed will be rendered in the exercise of independent professional judgment uninhibited by any outside influence or control. Surely, protection of the public health and safety depends at least as much on the professional independence of licensees as on their professional competence.

It is unrealistic to assume that the head of a construction company who, in managing that company’s construction contract, must be concerned with time and cost restraints, allocation of resources, and profit margins, will somehow remain unaffected by these concerns simply by donning his other hat and assuming the role of professional engineer. Indeed, the interrelated nature of the "design-build” contract at issue makes this kind of distancing impossible; the fees paid by the owner for architectural and engineering services are defined as a percentage of the total project cost, thus making the financial interests of the licensee inseparably wedded to those of the contractor. Therefore, it cannot be said with any confidence that the licensee will not subordinate the owner’s interests to those of his corporate employer. Especially is this true where the terms and conditions under which the architect/ engineer is retained by the contractor are undisclosed. Where there is neither contract nor privity directly between the professional licensee and the client, it is virtually impossible for the licensee to maintain a professional relationship of trust and confidence (see, Matter of Co-operative Law Co., 198 NY 479, 484). "His master would not be the client but the corporation, conducted it may be wholly by laymen, organized simply to make money and not” to render professional services of the highest caliber (Matter of Co-operative Law Co., 198 NY, at 484, supra). By ensuring that licensed professionals render unfettered independent judgment, the licensing statutes are designed to protect owners against the adverse consequences that may result from precisely this type of divided allegiance.²

Neither Bronold v Engler (194 NY 323) nor Vitanza v City of New York (48 AD2d 41, affd on opn below 40 NY2d 872) offer any support for the result reached by the majority. Both those cases involved the application of section 45 of the General City Law prohibiting unlicensed persons from performing plumbing work. In Bronold, contrary to the assertion of the majority (majority opn, at 593), we held in the circumstances of that case, that no recovery may be had under a plumbing contract where the contractor is not properly licensed even if a licensed master plumber is employed as a manager in the business. Similarly, in Vitanza, we held that where the contractor is not properly licensed, it may not perform the plumbing work indirectly through a licensed plumber retained for this purpose. Thus, far from validating the "design-build” contract at issue here, both cases would appear to support just the opposite conclusion: namely, that the contractor may not avoid the licensing requirement by the simple expedient of employing a licensed professional in its construction business.

The majority mistakenly relies on an exception referred to in each case permitting an unlicensed contractor to retain licensed plumbers where "the builder contracts to erect a structure, including the plumbing work, for an all-inclusive sum and the plumbing work may be considered 'the mere incident of a larger work’ ” (Vitanza v City of New York, 48 AD2d, at 45, supra [quoting Bronold v Engler, 194 NY, at 325, supra]). The proscriptions against the unauthorized practice of engineering and architecture, however, unlike those relating to plumbing, extend not only to those who practice without a license but also to those who "[offer] to practice or [hold themselves] out as being able to practice” (compare, General City Law § 45; and Education Law § 6512). Thus, there is no justification for concluding that the above exception, arising under the licensing provisions of the General City Law, has any relevance to the instant case. Even if the exception alluded to were relevant, it cannot operate here, not only because the provision of architectural and engineering services for the agreed upon construction project can hardly be characterized as a "mere incident of a larger work” (Bronold v Engler, 194 NY, at 325, supra), but also because architecture and engineering, as distinguished from plumbing, qualify as "learned professions” that may not be practiced indirectly through licensees (see, Matter of Co-operative Law Co., 198 NY, at 484, supra).

In Matter of Co-operative Law Co., we considered and applied the "learned professions” principle in holding that an unlicensed business corporation may not practice law through licensed attorneys: "A corporation can neither practice law nor hire lawyers to carry on the business of practicing law * * * The legislature in authorizing the formation of corporations to carry on 'any lawful business’ did not intend to include the work of the learned professions * * * Business in its ordinary sense [is] aimed at, not the business or calling of members of the great professions, which for time out of mind have been given exclusive rights and subjected to peculiar responsibilities” (Matter of Co-operative Law Co., 198 NY, at 484-485, supra). Engineering and architecture are indisputably among the learned professions which are closely regulated by the State Board of Regents and the State Department of Education (Education Law §§6506, 6507, 6508, 7205, 7303). Practitioners must be of good moral character, possess a bachelor’s or higher degree, have several years of practical work experience, and pass a rigorous examination in order to qualify for a license (Education Law §§ 7206, 7304). Thus, inasmuch as an unlicensed business corporation may not practice architecture or engineering directly, it may not do so indirectly by retaining licensed professionals "as that would be an evasion which the law will not tolerate” (Matter of Cooperative Law Co., 198 NY, at 483, supra).

The current licensing provisions contained in title 8 of the Education Law are the product of five years of study by a Joint Legislative Committee formed "to revise and simplify that portion of the Education Law dealing with the professions” (Mem from Attorney-General, Governor’s Bill Jacket, L 1971, ch 987; see, Mem in support of bill, Governor’s Bill Jacket, L 1971, ch 987). Thus, in the absence of explicit statutory authorization permitting unlicensed business corporations to practice architecture and engineering through licensees, there is no reasoned basis for inferring that the Legislature intended to permit such practice. Yet, notwithstanding the clearly articulated legislative intent, as reflected in title 8 of the Education Law and article 15 of the Business Corporation Law, today the majority has permitted J.M. Weller to do that which law and public policy expressly prohibits. By endorsing the "design-build” agreement, the majority has, in my judgment, enervated this licensing scheme by seyerely diminishing the protections it was intended to provide. Accordingly, I would reverse the order of the Appellate Division and grant plaintiffs’ motion for summary judgment.

Chief Judge Wachtler and Judges Kaye and Hancock, Jr., concur with Judge Bellacosa; Judge Alexander dissents and votes to reverse in a separate opinion in which Judges Simons and Titone concur.

Order affirmed, with costs.

1 . Although the contract at issue here makes reference to a secondary agreement between the contractor and the architect/engineer, there is absolutely no evidence in the record that any such agreement was ever entered into, let alone any indication as to its terms and conditions. Particularly absent is any provision explaining the professional obligations of the engineer vis-á-vis the Charleboises. Notably, the only signatures on the contract are those of J.M. Weller and the Charleboises; although James M. Weller, P.E. is named in the contract as the architect/engineer, his signature appears only in his representative capacity as president of J.M. Weller. Thus, although the named engineer may well have performed the work, the Charleboises were essentially at the mercy of the contractor in respect to the nature and extent of the licensee’s contractual obligations.

2 . Although, as recognized by the majority (majority opn, at 592), a licensee may be disciplined by the State Board of Regents if found guilty of professional misconduct, this statutory protection, though important, is triggered only by carefully delineated and egregious forms of behavior (Education Law §§ 6509, 6511), and is inadequate to serve the more general statutory purpose of ensuring that owners receive the best efforts and undivided loyalty of the professional licensee. The same may be said of a client’s ability to sue the professional licensee in tort for malpractice.