N.Y.C. Department of Consumer Affairs 42 Broadway New York, N.Y. 10004 (212) 487-4444

Donald, Kathleen and Patricia Gittens and The Department of Consumer Affairs v. City Remodeling Services Corp.

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

DONALD, KATHLEEN and PATRICIA GITTENS
and
THE DEPARTMENT OF CONSUMER AFFAIRS,
Complainants,
-against-
CITY REMODELING SERVICES CORP.,
Respondent. / DECISION AND ORDER
Violation No.: CD 500078599
License No.: HIC 1036934
Date: 12/15/03

N.Y.C. Department of Consumer Affairs  42 Broadway  New York, N.Y.  10004  (212) 487-4444

CD 5-78599

Page 1

An inquest on the above-captioned matter was held on September 10, 2003.

Appearances: For the Complainants: Donald, Kathleen and Patricia Gittens. Although duly notified of the time and place of the hearing, the respondent(s) failed to appear.

The respondent is charged with violating the following:

1)Administrative Code of the City of New York Section 20-393(1) by deviating from or disregarding the plans or specifications or any terms and conditions agreed to under a home improvement contract in any material respect without the written consent of the owner.

2)Administrative Code Section 20-393(2) by making a false promise, of a character likely to influence, persuade, or induce, to complete the contracted work.

3)Administrative Code Section 20-393(6) by willfulling or deliberately disregarding and violating the building, sanitary, fire and health laws of this city.

4)Administrative Code Section 20-393(11) by failing to perform work under a home improvement contract in a skillful and competent manner.

5)6 RCNY Section 2-221(a)(2) by failing to in the contract an estimated date of substantial completion of the work.

6)6 RCNY Section 2-221(a)(4) by failing to include in the contract a notice that the contractor or subcontractor who performs work on the contract and is not paid may have a claim against the homeowner that may be enforced against the property in accordance with the applicable lien laws.

7)6 RCNY Section 2-221(a)(7), by failing to “include in the contract a clearly stated Guaranty or Warranty which disclosed the period of time covered.”

8)6 RCNY Section 2-221(a)(8), by failing to include in the contract a clause wherein the contractor agrees to furnish the complainants, as buyers, with a certificate of Worker’s Compensation prior to the commencement of work, pursuant to the contract.

9)6 RNCY Section 2-223 by “failing to include in the contract a clause requiring [the contractor] to secure or see to the securing of each and every permit, license, certificate of occupancy, special exception or the like necessary to the proper completion of such contract in accordance with applicable state or local building laws.”

Based on the evidence in this case, I RECOMMEND the following:

Findings of Fact

On December 3, 2001, respondent entered into a written home improvement contract with Donald, Kathleen and Patricia Gittens (collectively, the “Gittens”) for $32,500.00.[1] Under the terms of this contract, respondent agreed to perform various work, including:

(a)Remove the existing concrete from the driveway, entrance walk, rear yard area, walkway next to the house (approximately three feet wide) at rear and north side of premises and install four inch deep, wire mesh reinforced standard gray concrete.

(b)Cut back the concrete front porch steps and column supports to a sound base and re-stucco these features using a standard light gray concrete.

(c)Replace the terra cotta color quarry tile on the top platform of the stoop.

(d)Remove the wrought iron stoop railings for repaid and repainting and reinstall the railings in the concrete stairs, using plumbers lead as the resettling materials.

(e)The stoop restoration will maintain the historic light gray color and texture of the stoop, the “bullmoose” detail of the stoop treads and the terra cotta paving on the top platform. The new driveway will maintain the double ribbon of paving with a strip of grass down the center of that portion of its runs from the sidewalk of the rear wall of the side extension. The setting of the stoop railing with plumbers’ lead will extend the life expectancy of both the wrought iron rails and the concrete steps into which they are set.

(f)Replace the flat roof on the front porch portico.

(g)Reseal the second story rear cement desk along areas attached to premises.

(h)Repair roof leak on side extension located at south side of premises, and sheetrock, tape and plaster, kitchen ceiling where said leak has caused damaged.

(i)Redirect front right leader to side of premises.

(j)Cart away all job-related debris including old tree stumps and root debris at read of side extension.

The Gittens paid $31,000, in cash, for this contracted work. Although Respondent began demolishing of the stoop; removed the existing concrete from the driveway, entrance walk, rear yard area, walkway next to the house (approximately three feet wide) at rear and north side of premises; and installed four inch deep, wire mesh reinforced standard gray concrete, Respondent failed to complete performance of the contract. For this reason, the Gittens did not pay the balance. The Gittens did not cancel the contract.

At some time before the Gittens expected Respondent to complete performance, i.e., in the spring of 2002, Respondent’s principal, Thomas McNally, fell into a coma.

Respondent did not represent to the Gittens when work would be completed.

No showing was made of an “advertised representation, but not limited to any charge, guaranty, or warranty” within the meaning of 6 RCNY 2-221(a)(7).

No showing was made that Respondent disregarded or violated any of the building, sanitary, fire and health law of this city.

The contract failed to include the following information:

(a)an estimated date of substantial completion of the work;

(b) a notice that the contractor or subcontractor who performs work on the contract and is not paid may have a claim against the homeowner that may be enforced against the property in accordance with the applicable lien laws; and

(c)a clause wherein the contractor agrees to furnish the complainants, as buyers, with a certificate of Worker’s Compensation prior to the commencement of work, pursuant to the contract.

Opinion

I find that the Gittens have presented convincing evidence that the work done by Respondent was not substantially completed nor done in a skillful and competent manner. Accordingly, I find that, in this regard, Respondent failed to perform work under a home improvement contract in a skillful and competent manner and Respondent deviated from or disregarded the terms and conditions of the contract in a material respect without the consent of the Gittens.

The Gittens presented a December 13, 2002 estimate from West New York Restoration of CT, Inc. (HIC license # 1119172), in the amount of $132,500.00 to complete the contracted-for work. (Consumer Exhibit “10”). However, this estimate includes a cost item of $100,000 for maintainance of the historic light grey color texture along with the “bull[-]nose” detail of the steps/riser and the terra cotta quarry tile on the top platform. I considered the presented estimate to be grossly exaggerated and gave leave to the Gittens to present another estimate.

The Gittens then submitted the opinion letter and estimate of Fernando Lleras, Jr. which itemizes the defects in the work completed[2], and provides an expert opinion as to the expected cost of for replacement of concrete ($30,000); for consequential damage, including for potentially serious water leaking on the north side of the house ($5,000); and for restoration of stairs ($9,000), amounting to: $44,000.00.

As stated above, Mr. Lleras’ estimate includes a component of an estimated cost of $9,000 to “restore the stairs.” The Gittens also presented two estimates of licensed contractor M. Kamal, one for $4,000.00 and the other for $15,000., respecting work on the stairs. I conclude that, for purposes of placing Respondent in the position before Respondent undertook its work, Mr. Lleras’ estimate should be credited over those estimates of M. Kamal.

As indicated above, Mr. Lleras’ estimate also includes a component of an estimated cost of $30,000.00 to “replace 3,047 square feet of concrete.” The Gittens also presented a third estimate of licensed contractor M. Kamal respecting the replacement of 4,918 square feet of concrete at the premises, in the amount of $23,000. I conclude that, for this purpose, the Kamal estimate should be credited.

Except as noted above, I otherwise credit the Lleras opinion letter and estimate. Accordingly, I determine that $37,000. is the reasonable cost of repair of Respondent’s work; for consequential damage; and for restoration of stairs, calculated as follows, in either of these ways:

(a)$44,000. (the total of Mr. Lleras’ estimate), discounted by $7,000. (the difference between the component of that estimate for replacement of concrete ($30,000) and the credited Kamal estimate ($23,000)); or, alternatively,

(b)the credited Kamal estimate for replacement of concrete ($23,000), plus the Lleras estimate for consequential damages ($5,000), plus the Lleras estimate for stair restoration ($9,000).

The credible evidence does not show that Respondent made a false promise of a character likely to influence, persuade or induce, or that Respondent disregarded or violated any of the building, sanitary, fire and health laws of this city.

The credible evidence shows that Respondent did not make an “advertised representation, but not limited to any charge, guaranty, or warranty” within the meaning of 6 RCNY 2-221(a)(7).

The credible evidence shows that the contract failed to include the following information:

(a)an estimated date of substantial completion of the work;

(c)a clause wherein the contractor agrees to furnish the complainants, as buyers, with a certificate of Worker’s Compensation prior to the commencement of work, pursuant to the contract.

6 RCNY 2-223(a) provides “[i]n the performance of any Home Improvement Contract, it shall be the non-delegable duty and obligation of the prime contractor to secure or see to the securing of each and every permit, license, certificate of occupancy, special exception or the like necessary to the proper completion of the contract in accordance with applicable state or local building laws.” However, 6 RNCY 2-223 does not require, as alleged, that the contract specifically include a clause to this effect. The credible evidence does not show that respondent otherwise failed to meet its duty and obligation to so secure such documents.

The credible evidence indicates that the contract price appears low for the work contemplated and that it may cost the Gittens considerably more to complete that work. In an award of restitution, the Gittens may not get the benefit of an argued “absurd” contract price. (See Comp. Ex. 11, p. 3.) However, as I have determined above (see pages 4-5), the reasonable cost to repair the work improperly done and to compensate the Gittens for consequential damages is $37,000. Although the Gittens’ expert concedes that Respondent did 20% of the stoop-finishing job, he also details defects in this work, notes that respondent left the work in a potentially hazardous condition and much of the debris from the demolition of the stairs still remains. Accordingly, it is my opinion that Respondent is not entitled to a credit for such work. Accordingly, it is my opinion that a proper restitutionary award to the Gittens is $37,000.

Order

The respondent is found guilty of charges 4, 5, 6 and 8. In addition, the respondent is found guilty of violating 6 RCNY Section 1-14 by failing to appear at a duly noticed hearing.

The respondent is ordered to pay to the Department a TOTAL FINE of

$2,600. as follows:

Charge 1:$1,000.

Charge 4:$500.

Charge 5:$200.

Charge 6:$200.

Charge 8:$200.

6 RCNY Section 1-14:$500.

The respondent is further ordered to pay RESTITUTION to Donald, Kathleen and Patricia Gittens in the amount of $37,000.

In addition, the contract dated December 31, 2001 is hereby CANCELED.

The respondent is found not guilty of charges 2, 3, 7 and 9, and these charges are DISMISSED.

This constitutes the recommendation of the Administrative Law Judge.

______

Mitchell B. Nisonoff

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

This constitutes the Decision and Order of the Department. Failure to comply with this Order within thirty days will result in the suspension of the license.

______

Nancy J. Schindler

Deputy Director of Adjudication

If the respondent wishes to file a MOTION TO VACATE this decision, it must submit the motion within 15 days from the date it knew or should have known of this decision. The motion must include the following: A check or money order for the sum of $25 payable to the Department of Consumer Affairs; and the restitution amount; and a sworn statement outlining a meritorious defense to the charges alleged in the Notice of Hearing; and a statement offering an excuse for its failure to appear on the designated hearing date. In addition, the respondent must serve a copy of its motion to vacate on both the consumer complainant and theLegal Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

If the consumer complainant wishes to APPEAL this decision, or file a MOTION FOR REHEARING, you must file the appeal or motion within 30 daysof the date of this decision. You must include with your appeal or motion a check or money order for the sum of $25 payable to the Department of Consumer Affairs. In addition, you must serve a copy of your appeal or motion on the respondent(s).

N.Y.C. Department of Consumer Affairs  66 john street  New York, N.Y.  10038  (212) 361-7770

[1]There was additional work requested on the premises – for a “beehive ‘drywell’ drainage system” -- for an additional cost of $2,300.00 (paid for on December 10, 2001). However, at the hearing, the Gittens acknowledged that that this work was completed to their satisfaction.

[2]The opinion details more than 1/3 of the 3,047 square feet of concrete is cracked and deteriorating; the concrete was not leveled prior to poring, resulting in many crooked area; the cuts were done without symmetry and uniformity; thin strips of wood improperly are embedded in the cement; the concrete was not mixed in the correct ratios; many places did not receive adequate rebar and much appears not to be leveled with gravel.