Lucy Pesce and the Department of Consumer Affairs V. Maitro Construction, Inc. & Nick

CD5-89942 & DD5-89942

Page 1

Lucy Pesce and the Department of Consumer Affairs v. Maitro Construction, Inc. & Nick Kashioulis

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

The consumer and the respondents previously entered into a Settlement Agreement on April 3, 2006 whereby the respondents agreed to pay her the sum of $3,800 in six equal monthly installments of $633.33. Upon the consumer’s claim that the respondents failed to make any payments, the matter was restored to the hearing calendar on August 23, 2006 at 9:30 a.m. At that time, only the consumer and her witnesses, Adrianna Berlingerio and Joanne Mercatante, appeared and, accordingly, an inquest was held. However, respondent Nick Kashioulis subsequently notified the Department that his failure to appear on August 23, 2006 was due to medical reasons. Upon his sufficient showing of medical disability, an additional hearing was held on February 22, 2007 at 9:30 a.m. for the purpose of providing the respondents an opportunity to cross-examine the consumer complainant on the evidence she presented at the inquest held on August 23, 2006, and to present testimony and other evidence.

Appearing on February 22, 2007: For the Complainants: Lucy Pesce and witness Adrianna Berlingerio. For the Respondents: Nick Kashioulis.

The respondents are charged with violating the following:

1. Administrative Code of the City of New York (hereinafter “Administrative Code”) Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by improperly replacing the fieldstone.
2. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by installing the columns crookedly.
3. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by installing the siding improperly.
4. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by improperly extending the slate roof.
5. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by installing the awning improperly.
6. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by connecting the gutter improperly.
7. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by installing the leader improperly.
8. Administrative Code Section 20-393(1) for deviating from the terms and conditions agreed to under a home improvement contract without the written consent of the owner by installing the soffit improperly.
9. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner by skillfully and incompetently installing the fieldstone.
10. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the installed columns were crooked.
11. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the siding installation was unskilled and incompetent.
12. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the respondents unskillfully and incompetently installed the slate roof.
13. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the respondents unskillfully and incompetently installed the awning.
14. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the respondents unskillfully and incompetently installed the gutter.
15. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the respondents unskillfully and incompetently installed the leader.
16. Administrative Code Section 20-393(11) for failing to perform work in a skillful and competent manner in that the respondents unskillfully and incompetently installed the soffit.
17. Title 6 of The Rules of The City Of New York (6 RCNY) Section 2-221(a)(1) for failing to include the name of the Home Improvement Contractor in the contract.
18. Title 6 of The Rules Of The City of New York (6 RCNY) Section 2-221(a)(2) for failing to include in the home improvement contract the approximate date or estimated dates of when the work would begin.
19. Title 6 of The Rules Of The City of New York (6 RCNY) Section 2-221(a)(2) for failing to include in the home improvement contract the approximate date or estimated dates of when the work would be substantially completed.
20. Title 6 of The Rules of The City Of New York (6 RCNY) Section 2-221(a)(2) for failing to include in the home improvement contract a statement of contingencies that would materially change the approximate or estimated completion date.
21. Title 6 of The Rules of The City Of New York (6 RCNY) Section 2-221(a)(1) for failing to include in the home improvement contract a statement whether a definite completion date was of the essence.
22. Administrative Code Section 20-201 for failing to maintain the standards of integrity, honesty and fair dealing required of licensees.

Based on the evidence in the record, I RECOMMEND the following:

Findings of Fact

On August 8, 2003, the consumer and respondent Maitro Construction, Inc. (hereinafter “Maitro”) entered into a written agreement whereby Maitro would construct an awning over the front porch, with columns to be supplied by the consumer, of the consumer’s one-family house situated at 56-39 211th Street, Bayside, NY 11364 for $3,500, which the consumer paid in full. Respondent Nick Kashioulis (hereinafter “Nick”) was the salesperson on the contract, but did not provide the consumer with a separate Notice of Cancellation form. Nick based the awning design on a sketch he had previously drafted and presented to the consumer. He also wrote on the sketch and orally represented to the consumer that if she provided the columns, she would receive an $800 credit.

Nick and another worker began work in early September 2003 continued until on or about October 2, 2003. The consumer purchased decorative columns from Whitestone Lumber Corp. on September 29, 2003 for $228.11 which Maitro installed. However, Maitro never gave the consumer the $800 credit for supplying the columns.

Maitro’s work was defective, as follows:

• It improperly reinstalled some slate roof shingles which it had temporarily removed, so that rainwater pooled, causing sagging and leakage.
• The soffit on the underside of the awning was installed too low thereby preventing the front door from opening and closing properly.
• Rainwater leaks down the front of the house, from the point where the awning meets the original house down to the basement, also soaking the mailbox hanging alongside the front door.
• The vinyl paneling on the underside of the awning is falling off.
• The leader and gutter connection is faulty, thereby causing additional water leakage.
• The respondents removed fieldstone from alongside the front door, but failed to replace it, filling that area with cement instead.
• The respondents installed the two columns (supplied by the consumer) crookedly.

The consumer repeatedly called Nick to return and correct the above problems. However, although he made appointments, he never kept them. Approximately six months thereafter, he sent a worker over, but the work he did failed to correct the defects. The consumer never consented, either orally or in writing, to any changes in the contract specifications.

The entire work performed by the respondents must be removed, and a portico and new columns must be constructed and installed, as per the estimate of Brothers Aluminum, License #0809708.

The contract document prepared by respondents failed to include the information required by 6 RCNY Sections 2-221(a)(1) and (a)(2).

Opinion

The credible evidence establishes that the work performed by the respondents was unskilled and incompetent, in violation of Administrative Code Section 20-393(11), and has to be redone. It is therefore determined that the consumer received no value for the $3,500 that she paid to Maitro Construction, Inc. Furthermore, the consumer’s credible testimony and the more-recent estimate from Brothers Aluminum establish that the columns purchased by the consumer approximately 3½ years ago are not usable and new ones must be purchased.It is further determined that, in performing said defective work, the respondents deviated from the terms of the contract without the consumer’s written consent. In light of the foregoing, it is determined that the consumer is entitled to be fully reimbursed for the $3,500 she paid to Maitro, plus the $228.11 she paid Whitestone Lumber Corp. for the columns. The consumer acknowledged at the hearing that she is only seeking the amount paid to Maitro and the amount she paid for the columns.

Nick failed to present any evidence to support histestimonythat Maitro’s work was acceptable. Furthermore, his claim that the consumer’s photographs of the improperly installed and leaking leader, and of the portico ceiling falling down, leaking and blocking the front door (Consumer’s Exhibits E and G) were falsified in some fashionis simply an unsupported allegation. There is nothing in those photographs to suggest that they were altered in any way. In addition, his claim that Maitro, and not the consumer, purchased the columns is not credible. In support, he submitted, post-hearing, a barely-legible copy of an undated invoice (Respondent’s Exhibit #1)that has no indication that the columns/items listed therein were purchased in connection with the work being performed at the consumer’s house. By contrast, the consumer presented an original invoice from Whitestone Lumber Corp. (Consumer’s Exhibit D) which was legible and which clearly set forth her name, address, the transaction date and a description of the columns purchased.

The evidence further establishes that the contract document failed to include the information required by 6 RCNY Sections 2-221(a)(1) and (a)(2). Accordingly, charges numbered 1 through 20 shall be sustained.

Charges numbered 21 and 22 fail to cite the correct sections of law and shall be dismissed accordingly.

Order

On CD5-89442 against Maitro Construction, Inc.

Respondent Maitro Construction, Inc. is found guilty of charges numbered 1 through 20, and is hereby

Ordered to pay to the Department a TOTAL FINE of $1,900, as follows:

Charges 1 through 8:$1,000

Charges 9 through 16:$ 500

Charge 17:$ 200

Charges 18 through 20:$ 200

Charges numbered 21 and 22 are dismissed as against Maitro Construction, Inc.

On DD5-89442 against Nick Kashioulis

Respondent Nick Kashioulis is found guilty of charges numbered 1 through 20, and is hereby

Ordered to pay to the Department a TOTAL FINE of $1,900, as follows:

Charges 1 through 8:$1,000

Charges 9 through 16:$ 500

Charge 17:$ 200

Charges 18 through 20:$ 200

Charges numbered 21 and 22 are dismissed as against Nick Kashioulis.

On CD5-89442 and DD5-89442

It is hereby

Orderedthat respondents Maitro Construction, Inc. and Nick Kashioulis pay restitution to consumer Lucy Pesce in the amount of $3,728.11, for which they are each jointly and severally liable.

This constitutes the recommendation of the Administrative Law Judge.

______

Bruce M. Dennis

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

This constitutes the Decision and Order of the Department. The Respondents’ failure to comply with this Order within thirty (30) days shall result in suspension of the licenses.

______

Nancy J. Schindler

Deputy Director of Adjudication

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, NY10038, 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, NY10038within 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).

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