dissents and votes to affirm the order appealed from, with the following memorandum, in which Thompson, J., concurs: I have no quarrel with the general proposition that an unlicensed contractor may not recover, whether in an action sounding in contract or in quantum meruit, for the unlicensed work it performs (Richards Conditioning Corp. v Oleet, 21 NY2d 895; George Piersa, Inc. v Rosenthal, 72 AD2d 593; Segrete v Zimmerman, 67 AD2d 999). Nonetheless, considerations of fundamental fairness may, in certain circumstances, warrant the application of an estoppel against the homeowner (Wormuth v Lower Eastside Action Project, 71 Misc 2d 314; see, e.g., Ann., 82 ALR2d 1429, § 3, pp 1441-1442; cf. Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184; Fosdick v Investors Syndicate, 266 NY 130). In my view, this is such a case. Defendants, one of whom is an attorney, knew at all times that plaintiffs were unlicensed, delayed compensating them in the course of their work and waited until the job was completed before raising the claim that the lack of a license should operate to defeat payment. Thus, defendants are not the innocent, unsuspecting parties that the licensing requirement was designed to protect. To turn the plaintiffs out of court at this juncture and reward defendants with a windfall is a punishment “wholly out of proportion to the requirements of public policy” evinced by the licensing statute (Rosasco Creameries v Cohen, 276 NY 274, 278). Inasmuch as the plaintiffs have set forth sufficient facts to justify the application of an estoppel (see Sehlbert Mechanical Corp. v Kessel/Duff Constr. Corp. 79 AD2d 680; Wormuth v Lower Eastside Action Project, supra), I would affirm the order of Special Term denying defendants’ motion for summary judgment.