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

Kane, J. P.

(dissenting). We are not persuaded by the majority’s attempt to legitimize a contractual arrangement, the clear purpose of which is to circumvent specific statutory proscriptions in the practice of architecture and engineering. Moreover, this decision frustrates the long-standing public policy of the State in an area where the Legislature has, consistently, rejected efforts to sanction the consequences of that decision.

We start with the proposition that only those persons licensed or otherwise authorized under the Education Law can engage in the practice of engineering or architecture (see, Education Law §§ 7202, 7302). Notably, corporations, other than professional corporations (Business Corporation Law art 15) and those excepted by Education Law §§7207 and 7307, cannot engage in the practice of engineering or architecture (see, Turner Constr. Co. v 1600 E. Ave., 30 Misc 2d 811, 812, affd 15 AD2d 631). The practice of engineering is defined as: *218"performing professional service such as consultation, investigation, evaluation, planning, design or supervision of construction or operation in connection with any utilities, structures, buildings, machines, equipment, processes, works, or projects wherein the safeguarding of life, health and property is concerned, when such service or work requires the application of engineering principles and data” (Education Law § 7201). The practice of architecture is defined as the: "rendering or offering to render services which require the application of the art, science, and aesthetics of design and construction of buildings [and] groups of buildings * * * wherein the safeguarding of life, health, property, and public welfare is concerned. Such services include, but are not limited to consultation, evaluation, planning, the provision of preliminary studies, designs, construction documents, construction management, and the administration of construction contracts” (Education Law § 7301).

Here, defendant, a profit-motivated business corporation, was not and could not be licensed as an engineer or architect, yet it contracted to perform such services by placing a licensed professional under its direct control. Such a contract is contrary to public policy, illegal and unenforceable (see, American Store Equip. & Constr. Corp. v Dempsey’s Punch Bowl, 174 Misc 436, 437, affd 258 App Div 794, affd 283 NY 601). The fact that Weller, defendant’s president, is a validly licensed professional does not alter the fact that the underlying contract is illegal (see, Hammerman v Jamco Indus., 119 AD2d 544, 545-546; George Piersa, Inc. v Rosenthal, 72 AD2d 593, 593-594; see also, Food Mgt. v Blue Ribbon Beef Pack, 413 F2d 716, 720-721; Dalton, Dalton, Little v Mirandi, 412 F Supp 1001, 1004-1005).

There are specific statutory provisions establishing criteria for professional services in corporate form, including those involved herein (Business Corporation Law art 15; see, Education Law § 7209 [4]). Clearly, there would be no reason for laws governing professional services by qualified professional service corporations if any business corporation could evade their provisions merely by employing a licensed professional. Here, the contract in question is a "design-build” contract, wherein the contractor becomes a "package dealer” which results in the creation of relationships frustrating the purpose of Education Law §§ 7201 and 7301. That overriding purpose is to provide protection for the life and safety of the general public, by requiring independent, unfettered professional de*219sign and construction services directly to an owner free of any influence or control by a third party. By the terms of this contract, Weller, the architect/engineer, is a subcontractor of defendant. He is also its president, and presumably, the alter ego of defendant. In such a relationship, sheer logic dictates the conclusion that the legal, ethical and fiduciary duties an independent professional would owe to an owner are, in these circumstances, subsumed by the profit motive inherent in the operation of any business enterprise. "James M. Weller President”, is a signatory to this contract. He cannot assume a different role by becoming "James M. Weller, P.E.”, architect/ engineer on the same project as a subcontractor of defendant, and thus isolate himself from the consequences of this entirely integrated design-build agreement. The plain, simple inescapable fact is, that under the terms of this agreement, defendant is providing architectural and engineering services. This it cannot do.

Accordingly, because defendant is not licensed and the illegal provisions of the contract vitiate the entire agreement, the entire promise fails and there can be no recovery on the theory of either breach of contract or quantum meruit (see, Hammerman v Jamco Indus., 119 AD2d 544, 545, supra; George Piersa, Inc. v Rosenthal, 72 AD2d 593, supra; American Store Equip. & Constr. Corp. v Dempsey’s Punch Bowl, 174 Misc 436, 437, supra). Defendant may not seek the aid of the courts to enforce an illegal contract (see, United Calendar Mfg. Corp. v Huang, 94 AD2d 176, 180).

The order should be reversed by denying defendant’s cross motion for summary judgment, and granting plaintiffs’ motion for summary judgment.

Weiss and Yesawich, Jr., JJ., concur with Casey, J.; Kane, J. P., and Levine, J., dissent and vote to reverse in an opinion by Kane, J. P.

Order affirmed, with costs to defendant against plaintiffs.