Nyc Department of Consumer Affairs

NYC DEPARTMENT OF CONSUMER AFFAIRS

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:NOTICE OF HEARING

James O’Grady

55 Sheradan Avenue Apt. P-H:CD # 500093824

Staten Island, NY 10314DD # 500093824

-and-

NYC DEPARTMENT OF CONSUMER AFFAIRS,

:

Complainants,

-against-

Seasons Roofing Corp. License # 1129718 (HIC)

191 Mayberry Promenade:

Staten Island, NY 10312

-and-

William Priola License # 1129717 (HIS)

191 Mayberry Promenade:

Staten Island, NY 10312

: December 14, 2007

Respondent-Licensees.

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An inquest on the above-captioned matter was held on November 15, 2007.

Appearances: For the complainants: James M. Brady. Although duly notified of the time and place of the hearing, the respondents failed to appear.

The respondents are charged with the following violations:

Respondents violated § 20-101 of the Code by failing to maintain the standards of integrity, honesty and fair dealing required of licensees in that Respondent failed to complete work required by the Contract.
Respondents violated § 20-393 (11) of the Code by failing to perform work under a home improvement contract in a skillful and competent manner.
Respondents violated § 20-113 of the Code by conducting activities under a name different from than that of the person or organization to whom such license was issued or the trade name stated in the application therefore.
Respondents violated § 20-393 (8) of the Code by conducting a home improvement business in any name other than the one in which the contractor is licensed.
Respondents violated 6 RCNY § 2-221 (a) by failing to furnish to the buyer a fully completedlegible copy of the entire home improvement contract at the time of its execution and before any work is done.
Respondents violated 6 RCNY § 2-221 (a) (1) by failing to include in the Contract the contractor’s license number and the salesperson’s license number.
Respondents violated 6 RCNY § 2-221 (a) (2) by failing to include in the Contract the approximate or estimated dates on which the Contract work would begin.
Respondents violated 6 RCNY § 2-221 (a) (2) by failing to include in the Contract the approximate or estimated dates on which the Contract work would be substantially completed.
Respondents violated 6 RCNY § 2-221 (a) (2) by failing to include in the contract any contingencies that would materially change the approximate or estimated completion date.
Respondents violated 6 RCNY § 2-221 (a) (2) by failing to state in the Contract as to whether a definite completion date has been determined to be of the essence.
Respondents violated 6 RCNY § 2-221 (a) (3) by failing to include in the contract a description of the materials to be provided to the owner, including make, model number or any other identifying information, and the agreed upon consideration for the work and materials.
Respondents violated 6 RCNY § 2-221 (a) (4) by failing to include in the contract a notice to the owner that the contractor or subcontractor who performs on the contract and is not paid may have a claim against the owner which may be enforced against the property in accordance with the applicable lien laws.
Respondents violated 6 RCNY § 2-221 (a) (5) by failing to include in the contract a notice to the owner that the home improvement contractor is legally required to deposit all payments received prior to completion in accordance with subdivision four of § 71-a of the New York State Lien Law and that, in lieu of such deposit, the home improvement contractor may post a bond or contract of indemnity with the owner guaranteeing the return or proper application of such payments to the purposes of the Contract.
Respondents violated 6 RCNY § 2-221 (a) (6) by failing, where the contract provides for one or more progress payments to be paid to the home improvement contractor by the owner before substantial completion of the work, to provide a schedule of progress payments showing the amount of each payment as a sum in dollars and cents and specifically identifying the state of completion of the work or services to be performed, including any materials to be supplied before each such progress payment is due.
Respondents violated 6 RCNY § 2-221 (a) (6) by failing to provide for progress payments which bear a reasonable relationship to the amount of work to be performed, materials to be purchased, or expenses for which the contractor would be obligated at the time of payment.
Respondents violated 6 RCNY § 2-221 (a) (8) by failing to include in the contract a clause wherein the contractor agrees to furnish the buyer with a Certificate of Workers' Compensation Insurance prior to commencement of work pursuant to the Contract.
Respondents violated 6 RCNY § 2-221 (a) (9) by failing to include in the contract a clause wherein the contractor agrees to procure all permits required by law.
Respondents violated 6 RCNY§ 2-221 (a) (10) by failing to include in the contract, in immediate proximity to the space reserved for the signature of the buyer and in bold face type of a minimum size of 10 points, a statement that the buyer has the right to cancel the transaction at any time prior to midnight of the third business day after the date of the transaction.
Respondents violated 6 RCNY § 2-221 (b) by failing to provide a separate Notice of Cancellation to the owner.
Respondents violated 6 RCNY § 1-05 by failing to clearly identify their license numbers and by failing to clearly identify the license numbers as a New York City Department of Consumer Affairs license number on all advertising, letterhead, receipts or other printed matter of the licensee, AND/OR by failing to disclose or disseminate the license number in a lawful manner.
Respondents violated 6 RCNY § 1-08 by failing to notify the Department in writing of any change of address of the licensed business, the residence addresses of individual licensees, all partners of partnership licensees, or the officers and principal stockholders of corporate licensees, within 10 days of the change.
Respondents violated 6 RCNY § 1-13 by failing to respond to the Department’s October 7, 2005 request for a response to the complaint within twenty days of the date that the complaint was sent.
Respondents violated 6 RCNY § 1-13 by failing to respond to subsequent communications from the Department concerning the complaint within 10 days after receiving a communication.

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

Findings of Fact

On July 22, 2004 James O’Grady (“Consumer”) entered into a written contract with Seasons Roofing & Siding Co. and William Priola (hereinafter, “Respondents”) for home improvement work to be performed on Complainant’s residential property located at 55 Sheraden Avenue, Staten Island, NY for $650.00 (“the Contract”).The Contract was deficient in that it did not include the following:

a)license number of the home improvement salesperson;

b)the approximate or estimated dates of commencement of the contract work;

c)the approximate or estimated dates of substantial completion of the Contract work;

d)a statement as to whether a definite completion date had been determined to be of the essence;

e)a notice to the owner that the contractor or subcontractor who performs on the contract and is not paid may have a claim against the owner which may be enforced against the property in accordance with applicable lien laws;

f)a notice to the owner that the home improvement contractor is legally required to deposit all payments received prior to completion in accordance with subdivision four of § 71-a of the New York State Lien Law and that, in lieu of such deposit, the home improvement contractor may post a bond or contract of indemnity with the owner guaranteeing the return or proper application of such payments to the purposes of the Contract;

g)a clause wherein the contractor agrees to furnish the buyer with a certificate of Workers' Compensation Insurance prior to commencement of work pursuant to the Contract;

h)a clause wherein the contractor agrees to procure all permits required by law;

i)a notice to the buyer, in immediate proximity to the space reserved for the signature of the buyer and in bold face type of a minimum size of 10 points, that the buyer has the right to cancel the transaction at any time prior to midnight of the third business day after the date of the transaction; and

j)A separate Notice of Cancellation form.

The consumer paid respondents $650. Respondents performed repairs on the roof but the leak subsequently continued. The consumer called the telephone number of Seasons Roofing and a party identifying itself as a successor company answered the call and returned to repair the roof again. However, the leak continued. The consumer then hired another company, Tri-Star Construction, which repaired the roof successfully for $1,650.

Opinion

The credible evidence establishes that complainant paid Respondents a total of $650.00.It further establishes that respondent partially performed work, but that it was defective, in that the roof continued to leak. Respondents abandoned the job without the consumer’s written consent and without refunding any of the money paid or completing the job properly.

In light of the foregoing, it is determined that the respondent failed to complete work required by the Contract, and thereby violated Sec. 20-101 of the Code by failing to maintain the standards of integrity, honesty and fair dealing required of licensees (Charge #1). Respondent also violated Sec. 20-393(11) of the Code by failing to perform work under the contract in a skillful and competent manner (Charge #2).

The contract was deficient and violated 6 RCNY 2-221(a)(1) by failing to include the required license numbers, approximate dates of completion, contingencies that would materially change the estimated completion date, a statement as to whether time was of the essence, lien law requirements, clauses agreeing to furnish workers’ compensation insurance and all permits required by law, a statement of the right to cancellation as required and a separate notice of this right. Accordingly charges #6-8,10, 12-13, and 16-19 are sustained. Charges #9, #11,#14-15, and #20-23 were not proven.

The credible evidence further establishes that the consumer is entitled to restitution in the amount of $1,650, based on the costs incurred and demonstrated to repair the leaking roof after respondents’ failure to do so.

Order

CD500093824

Respondent Seasons Roofing is found guilty of charges #2, 6-8, 10, 12-13, 16-17, 18 and 19.In addition, respondent is found guilty of violating 6 RCNY Section 1-14 by failing to appear at a duly noticed meeting.

The Respondent Seasons Roofing is ORDERED to pay to the Department a TOTAL FINE of $2,950, as follows:

Charge 2$250

Charges 6-8$600 (3 counts at $200 each)

Charge 10$200

Charge 12-13$400 (2 counts at $200 each)

Charges 16-17$400 (2 charges at $200 each)

Charge 18$250

Charge 19$350

6 RCNY 1-14:$500.

Charges #3-5, 9, 11, 14-15, 20-23 are dismissed; and

DD500093824

Respondent William Priola is found guilty charges #2, 6-8, 10, 12-13, 16-17, 18 and 19.In addition, respondent is found guilty of violating 6 RCNY Section 1-14 by failing to appear at a duly noticed meeting and is hereby

ORDERED to pay to the Department a TOTAL FINEof $2,950, as follows:

Charge 2$250

Charges 6-8$600 (3 counts at $200 each)

Charge 10$200

Charge 12-13$400 (2 counts at $200 each)

Charges 16-17$400 (2 charges at $200 each)

Charge 18$250

Charge 19$350

6 RCNY 1-14:$500.

Charges #3-5, 9, 11, 14-15, 20-23 are dismissed. It is hereby further

CD500093824 and DD500093824

Ordered that respondents William Priolaand Seasons Roofing Corp. pay restitution to the consumer in the amount of $1,650, for which they are jointly and severally liable.

The licenses #1039220 (HIC) and #1039223 (HIS) are revoked, effective immediately.

This constitutes the recommendation of the Administrative Law Judge.

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Lee Fawkes

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

This constitutes the Decision and Order of the Department.

______

Nancy J. Schindler

Deputy Director of Adjudication

cc:Enforcement (Inspector Sorkin)

William Priola

Seasons Roofing Corp.

191 Mayberry Promenade

Staten Island, NY 10312

NOTICE TO RESPONDENT(S): If you wish to file a MOTION TO VACATE this decision, you must submit the motion to the Director of Adjudication, Department of Consumer Affairs, 66 John Street, New York, NY 10038, within 15 days from the date you knew or should have known of this decision. The motion must include: A check or money order for the sum of $25 payable to the Department of Consumer Affairs; anda check or money order payable to the Department of Consumer Affairs for the entire restitution amount ordered by the decision; 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, you must serve a copy of the motion to vacate on both the consumer complainant and the Legal Services Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

NOTICE TO CONSUMER COMPLAINANT(S): If you wish to APPEAL this decision, or file a MOTION FOR REHEARING, you must file the appeal or motion with the Director of Adjudication, Department of Consumer Affairs, 66 John Street, New York, NY 10038 within 30 daysfrom 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).