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Marie Ciarametaro and the NYC Dept. of Consumer Affairs v. Exclusive Construction Management, Inc.
and
Marie Ciarametaro and the NYC Dept. of Consumer Affairs v. Terzulli, Rosario J, as President
CITY OF NEW YORK
DEPARTMENT OF CONSUMER AFFAIRS
MARIE CIARAMETAROand
NYC DEPARTMENT OF CONSUMER AFFAIRS,
Complainants,
-against-
EXCLUSIVE CONSTRUCTION
MANAGEMENT, INC.
and
TERZULLI, ROSARIO J., asPresident
Respondents. / DECISION AND ORDER
Violation No.: CD500094118
DD500094118
License No.:
1153110 (HIC)
1153112 (HIS)
Address:
7017 19th Avenue
Suite 2
Brooklyn, NY11204
Date: August 17, 2007
N.Y.C. Department of Consumer Affairs 42 Broadway New York, N.Y.10004 (212) 487-4444
Page 1
An inquest on the above-captioned matter was held on July 18, 2007.
Appearances: For the Complainant: Marie Ciarametaro and Joseph Ciarametaro, For the Respondents: No appearance
The respondentsare charged with violating the following:
1)Title 20 of the New York City Administrative Code, Chapter 1, Section 20-101, by failing to maintain the standards of integrity, honesty and fair dealing required of licensees in that Respondents failed to complete work as required by the contract;
2)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, pella doors with blinds were never installed;
3)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1),by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, three windows were not installed;
4)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, a mirror door for the closet was not installed;
5)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the tiles were not installed in the kitchen, hallway and steps;
6)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the wood floors were not installed in the front room and the bedroom;
7)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1),by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the radiator was not installed;
8)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1),by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the two sets of bi-fold doors were not installed in the front room;
9)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the crown moldings in the front room were not installed;
10)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, five new doors wee not installed;
11)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the circuit box for the outside lights was not installed;
12)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the wall extension was not opened;
13)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the bathroom window was not installed;
14)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the sheetrock was not installed on the walls;
15)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the insulation was not installed in the exterior walls and ceilings;
16)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the electrical work was not done;
17)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the cement was not applied around the home;
18)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(1), by abandoning the work they had contracted to perform under the contract prior to completion of that work in that, the kitchen cabinets were not installed;
19)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(11),by failing to provide work under a home improvement contract in a skillful and competent manner in that, a pipe larger pipe was not installed in the bathroom;
20)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(11),by failing to provide work under a home improvement contract in a skillful and competent manner in that, the saddle was not installed at the front door;
21)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(11),by failing to provide work under a home improvement contract in a skillful and competent manner in that, the basement ceiling was not patched;
22)Title 20 of the New York City Administrative Code, Chapter 2, Subchapter 22, Section 20-393(7),by failing to notify the Commissioner of a change in location;
23)Title 6 of the Rules of the City of New York (hereafter “6 RCNY”) Section 2-221(a) by failing to obtain an agreement to perform home improvement by a written contract signed by all parties, in that the respondent did not sign the contract;
24)6 RCNY, Section 2-221 (a)(1), by failing to include the home improvement contractor’s license number in the contract;
25)6 RCNY, Section 2-221 (a)(1), by failing to include the home improvement contractor’s telephone number in the contract;
26)6 RCNY, Section 2-221 (a)(1), by failing to include the home improvement salesperson’s name in the contract;
27)6 RCNY, Section 2-221(a)(2), by failing to include in the contract the approximate or estimated dates the contract work would begin;
28)6 RCNY Section 2-221(a)(2), by failing to include in the contract the approximate or estimated dates the contract work would be substantially completed;
29)6 RCNY Section 2-221(a)(2), by failing to include in the contract any contingencies that would materially change the approximate or estimated completion date;
30)6 RCNY Section 2-221(a)(2), by failing to state in the contract whether a definite completion date is of the essence;
31)6 RCNY Section 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;
32)6 RCNY Section 2-221(a)(5), by failing to include in the contract 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 Section 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;
33)6 RCNY, Section 2-221(a)(6), by failing 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 progress payment is due;
34)6 RCNY, Section 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;
35)6 RCNY, Section 2-221(a)(7), by failing to clearly state an advertised representation regarding a charge, guaranty, or warranty, and to make such representation a part of the home improvement contract;
36)6 RCNY Section 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;
37)6 RCNY Section 2-221(a)(9), by failing to include in the contract a clause wherein the contractor agrees to procure all permits required by law;
38)6 RCNY Section 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 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 transaction;
39)6 RCNY Section 2-221(b),by failing to provide a separate Notice of Cancellation to the owner; and
40)Exclusive Constructionviolated 6 RCNY, Section 1-13, by failing to respond to the Department’s November 17, 2005,request for a response to the complaint within twenty days of the date that the complaint was sent toExclusive Construction.
Based on the evidence in this case, I RECOMMEND the following:
Findings of Fact
On June 4, 2004, Marie Ciarametaro, the complainant, and the respondents, Exclusive Construction Management, Inc.and Rosario Terzulli J., President,entered into an agreement for $52,500.00 to construct a two story extension at the rear of the complainant’s house at 1239 85th Street, Brooklyn, NY. After performing minor work on the first floor, the respondents abandoned the contract without notice on or about May 13, 2005, after being paid a total of $36,000.00.
The total additional cost to the complainant to complete the original contract was $88,332.26. (The complainant paid $68,623.45 in additionallabor and material expenses and $19, 008.81 inadditional supplies to complete the contract.) The complainant also paid a $500 fine to the Environmental Control Board (“ECB”) for a violation at the work siteand also paid an additional $200 work permit fee to the Department of Buildings in order to continue the work at the premises after the respondents abandoned the contract.
In addition, the agreement entered into between the parties did not include all the required information that must lawfully be included in all home improvement work agreements.
Opinion
The credible evidence establishes that the respondentsabandoned the contract without notice, and did not returnthe $36,000.00down payment received from the complainants against the contract price of $52,500.
Based on the foregoing, it has been proven by a preponderance of the credible evidence that the respondents violated Title 20 of the New York City Administrative Code, Section 20-101, for failing to uphold the standards of honesty and integrity and fair dealings required of licensees due to the respondents abandonment of the contract without returning the complainant’s money and failing to inform the complainant of its intent to abandon the contract. Also, the respondents violated Section 20-393(1), by failing to install the following: Pella doors, 3 windows, mirror closet door, kitchen and hallway steps, by failing to completely install the wooden floors in the front room and bedroom, installthe radiator, the bi-fold doors and crown moldings in the front room, install the five new doors, circuit box for outside lights, open the wall for the extension, install the bathroom window, insulate and sheetrock the walls and ceilings, any electrical work or cement work, and by failing to install the kitchen cabinets.
The cost to the complainant for completing the original contract amounted to $88,332.26. The complainant is entitled to restitution as follows: the cost to complete the work specified in the contract with the respondents ($88,332.26), less $16,500.00, the balance remaining on the original contract price. This results in restitution in the amount of $71,832.26. This sum included receipts for supplies and home furnishings, made by the complainant in the amount of $19,008.81. In addition, there were expenses for merchandise and supplies from Home Depot ($6,749.21), Lowes ($1,305.11) and other supply stores (Kitchen & Bath $9,139.81, Home Surplus $190.74, and Tiles $1,623.94)). These items were necessary materials to complete the contract.
The cost includes a contract for $44,500, with J& K Contracting, Inc. (HIC license no. 1125538) to complete some of the original contract terms. The J&K Contract included home improvement work on the first floor as follows: install Pella doors with blinds, install 3 windows and radiator in kitchen, mirror door for closet, install floor for kitchen steps and hallway (no tile), install Bruce Wood floor in front room and bedroom, replace existing pipe with a larger pipe in bathroom and tile halfway into bathroom, install bi-fold doors, high hats and crown molding in the front room, repair saddle, install five wooden doors, install A/C, patch ceiling in basement, run air duct outside for dryer, install boxes for outside lights, install ironing board in wall and stain floor molding. J&K Contracting also performed home improvement work on the second floor as follows: open wall to extension, install Anderson Window in bedroom, sheetrock and insulate walls and ceiling, install Bruce Wood floor in extension, install closet, install 6 outlets and ceiling light, lower light in hallway and bring thermostat wire to first floor.
The complainant submitted copies of contracts into the record showing the cost of the labor and materials entered into with other contractors, besides J& K Contracting, for the completion of some of the terms of the original contract. These other contracts included home improvement work such as the following: electric $3,470, painting $5,000, plumbing $1,375, installation of shutters $303.45, awning $975, siding ($11,000 included in the J&K Contract price), and concrete and brick installation, $13,000.
The home improvement contract entered into between the complainant and the respondents did not contain all the notices, statements and disclosures required by the home improvement business law under which the respondents are licensed. The contract did not contain the respondent’s signature in violation of 6 RCNY, Section 2-221(a). Additionally, the Home Improvement Contractor and Salesperson’s license numbersare not on the contract and the Home improvement Contactor’s telephone number or salesperson’s name is also missing from the contract, a violation of 6 RNCY,
Section 2-221(a)(1). Violations of 6 RCNY, Section 2-221(a)(2) are found against the respondent for failing to include in the contract approximate dates of work commencement and completion, if, time of completion is of the essence or what, if any contingencies, might effect the contract work. Also, the contract did not include the statement that the lien law may be invoked, if a contactor is not compensated for work performed in violation of 6RCNY, Section 2-221(a)(4). Furthermore, the contract did not state that all payments made against the contract are to be deposited or a bond posted by the respondent,in violation of6RCNY, Section 2-221(a)(5). The contract does not include a detailed schedule of progress payments and the amount to be paid in relation to the work performed in violation of 6 RCNY, Section 2-221(a)(6). In addition, a violation of 6 RCNY, Section 2-221(a)(8), is found,in that the contract does not include thestatement that a Certificate of Workers Compensation be provided upon request prior to commencement of the contract. Additionally, the contract does not include a Right to Cancel the contract within 3 business days clause, set forth in the contract in bold 10 point type print near the buyer’s signature in violation of 6 RCNY, Section 2-221(a)(10). Also, the contract does not contain a separate Notice of Cancellation form easily detachable from the contract,in violation of 6 RCNY, Section 2-221(b).
However, there was no evidence presented by the complainant that the respondents violated Section 20-393(7), for failing to notify the Department of Consumer Affairs of a change of location. Also, there is no violation of 6 RCNY, Section 2-221(a)(7), in that there is no advertised warranty or guaranty in the contract and no violation of 6 RCNY, Section 2-221(a)(9), is established since the contract does include a statement that permits shall be obtained by the contractor. Additionally, noevidencewas presented to support the charge against Exclusive Construction Management, Inc.for violating 6 RCNY, Section 1-13, by failing to reply to the complaint within 20 days.
Order
On CD500094118
The respondent, Exclusive Construction Management, Inc., is found in violation of charge 1 (Section 20-101); charges 2-18, (Section 20-393(1)); charges 19-21 (Section 20-393(11));charge 23 (6RCNY, Section 2-221(a)); charges24-26 (6RCNY, Section 2-221(a)(1)); charges27-30 (6RCNY, Section 2-221(a)(2)); charge 31 (6RCNY, Section 2-221(a)(4)); charge 32 (6RCNY, Section 2-221(a)(5)); charges 33-34 (6 RCNY, Section 2-221(a)(6)); charge 36 (6 RCNY, Section 2-221(a)(8)); charge 38 (6 RCNY, Section 2-221(a)(10)); and charge 39 (6 RCNY, Section 2-221(b)).
The respondent, Exclusive Construction Management, Inc.is ordered to pay to the Department a TOTAL FINE of$3,500as follows:
Charge: 1 (License revocation)
Charges: 2 through 18 $500
Charges: 9 through 21$ 500
Charge: 23$200
Charges: 24 through 26$ 200
Charges: 27 through 30$ 200
Charge: 31 $ 200
Charge: 32$ 200
Charges:33 and 34$ 200
Charge: 36$ 200
Charge: 38$ 250
Charge: 39$ 350
Charges: 22,35, 37 and 40 are Dismissed
6 RCNY Section 1-14:$500
In addition, the HIC license isREVOKED, EFFECTIVE IMMEDIATELY for violation of charge 1. The respondent is directed to surrender its license document to the Licensing Division immediately. If the respondent continues to operate, with a revoked license, it is subject to CRIMINAL PROSECUTION and/or civil penalties of $100 per day for each day of unlicensed activity, as well as the closing of its business and/or the removal of items sold, offered for sale, or utilized in the operation of its business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the “Padlock Law”).