Complainants, Respondent. A hearing on the above-captioned matter was held on June 4, 2013 and July 18, 2013.

Transcription

1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS JENNY ALONZO and CHRISTOPHER GIANCONTIERI -and- DEPARTMENT OF CONSUMER AFFAIRS, -against- Complainants, DECISION AND ORDER Violation Nos.: CD DD License Nos.: (HIC) (HIS) ISLAM ZAHIRUL, Respondent. A hearing on the above-captioned matter was held on June 4, 2013 and July 18, Appearances: For the Complainants: Jenny Alonzo, consumer complainant; Christopher Giancontieri, consumer complainant. For the Respondent: Islam Zahirul. Language Line Bengali interpreter #7518 (June 4, 2013) and #13501 (July 18, 2013). The Notice of Hearing charged the Respondent with violating the following: 1. New York City Administrative Code ( Administrative Code ) and Title 6 of the Rules of the City of New York ( 6 RCNY ) by engaging in a deceptive trade practice in the performance of a Home Improvement Contract in that Respondent received payment for services not performed; 2. Administrative Code and 6 RCNY 1-12 by engaging in a deceptive trade practice by promising to complete the contracted work and failing to do so; 3. Administrative Code (1) by materially deviating from or disregarding the plans or specifications or any terms and conditions agreed to under a Home Improvement Contract, by abandoning the work;

2 Page 2 4. Administrative Code (11), by failing to perform work under a home improvement contract in a skillful and competent manner; 5. 6 RCNY 2-221(a)(1), by failing to include in the Contract the contractor s correct name, office address and Department of Consumer Affairs license number and the salesperson s name and Department of Consumer Affairs license number; 6. 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, would be substantially completed, a statement of any contingencies that would materially change the approximate or estimated completion date, and a statement of whether a definite completion date had been determined to be of the essence; 7. 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 applicable lien laws; 8. 6 RCNY 2-221(a)(5), by failing to include in the Contract a notice to the owner purchasing the home improvement 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 purpose of the contract; 9. 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; 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; 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

3 Page 3 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; RCNY 2-221(b), by failing to provide a separate Notice of Cancellation to the owner; 13. Administrative Code , by 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 31, 2011, Jenny Alonzo and Christopher Giancontieri ( Consumers ) entered into a written contract ( contract ) with Islam Zahirul ( Respondent ), whereby the Respondent agreed to break up and remove existing concrete in the consumers back yard and driveway at the residential property located at d Street, East Elmhurst, NY and replace it with 4 deep concrete, remove a garage from site, remove chipped/peeling paint from perimeter, and install smoke detectors outside the kitchen and bedroom. The agreed cost was $7,000. On September 1, 2011, the Consumers and Respondent amended the contract to reflect that work to be done on the lower perimeter would cost an additional $950 ( amendment ) 1 for a total contract price of $7,950. The Consumers paid $5,500 on the contract. The name on the contract reads, Zahirul Construction. The contracts did not include the language and information required by 6 RCNY 2-221(a)(1), (a)(2), (a)(4), (a)(5), (a)(8), (a)(9), (a)(10), and 2-221(b) in that the contract does not contain the Respondent s correct name, Home Improvement Contractor ( HIC ) license numbers or Home Improvement Salesperson s ( HIS ) license number. The contract does not note the date work would be substantially completed, nor does the contract contain a statement of any contingencies which materially change approximate or estimated completion dates, or a statement of whether the parties had determined a definite date to be of the essence. The Consumers initially paid the Respondent a deposit of $2,000 2 cash to begin the contracted work. The respondent commenced work on the contract in or about March 2012 (due to consumers mortgage difficulties). Shortly 1 Upon the consumer s application, the total contract price was amended on the record from $7,000 to 7, The deposit was originally paid by check. The check was returned to the consumer in exchange for payment in cash.

4 Page 4 thereafter, he failed to remove rubble caused by broken concrete and debris, the Consumers discovered that the concrete did not contain a metal reinforcement causing it to be uneven, the concrete included discolored patches and ladder marks were evident in it. Additionally, the driveway was not level, resulting in puddles forming and flooding the neighbor s garden, and cracks developed in the concrete. The Respondent abandoned the project without removing the rubble, repairing the concrete, removing paint from the perimeter, or installing smoke detectors. The Consumers subsequently paid Salvatore Valenza (HIC license # , HIS license # ) $8,380 to complete and correct Respondent s faulty work, in the following manner: removing new cement in the rear of house and driveway, grading and tampering down existing dirt, installing 4 concrete, install wire mesh (reinforcement wire) and expansion joints, and removing loose paint around the foundation (see consumer s exhibit 11). Opinion The Consumers established their claim for restitution by a preponderance of the credible evidence with respect to the following: A. Concrete in Backyard and Driveway The Consumers established through consistent and detailed testimony that cracks developed approximately one day after the respondent poured the concrete, sections of cement were uneven (and did not conform in color), causing improper draining and pooling of water. The Consumers established that, upon notifying the Respondent of these issues, he refused to correct the condition until he was paid the balance of the contract. However, full payment was contingent upon the bank s approval of all contracted work satisfactorily signed-off and completed. The Respondent s claim that he completed all of the contracted work is not supported by any credible, corroborating evidence. Furthermore, the Respondent offered conflicting testimony in that he initially claimed to have repaired the concrete cracks but subsequently denied performing such repairs. 3 His contention that he refused to perform necessary repairs unless he was paid the balance of the contract does not set forth a meritorious defense, as the Consumers credibly testified that the Respondent was repeatedly advised throughout the parties negotiations, that full payment was contingent upon the bank s approval of the project performed in its entirety. 3 The respondent further claimed that the appearance of such cracks within the time-frame alleged by the Consumers is customary. Such claim is not supported by any credible, corroborating evidence.

5 Page 5 B. Concrete Not 4 Deep and Concrete Laid Without Removing Old Concrete The Consumers established by a preponderance of the credible evidence that the Respondent failed to install the new concrete at a 4 deep depth, as required by the contract, and respondent s failure to remove all of the old concrete and rubble resulted in concrete which set in an uneven fashion and subsequently cracked. The consumers testified in clear and consistent detail that they relied upon and were advised by a new contractor (Mr. Valenza) that the concrete installed by the Respondent was not 4 deep and lacked proper reinforcement. The Respondent s assertion that the concrete measured 4 is not supported by any credible, corroborating evidence. The Consumers offered detailed and consistent testimony to establish that Respondent s employees poured new concrete over existing rubble and debris from the breaking up of old concrete (see consumer s exhibit 8), resulting in cracking. The Respondent s bare claim that the photos provided by the Consumers depict conditions before new concrete was poured, is not supported by any credible, corroborating evidence. C. Removal of Paint from Lower Perimeter The Consumers established by a preponderance of the credible evidence that the Respondent failed to remove chipped and peeling paint from the entire lower perimeter of the house. The Respondent s argument that he completed the paint removal from the entire perimeter is not supported by any credible, corroborating evidence. Rather, his reference to a photograph of a portion of the perimeter (see consumer s exhibit 16) supports the consumers claim that the work was not completed, as the paint does not appear to have been completely removed. The Consumers submitted an estimate of $8,380 from Salvatore Valenza Contractors Inc. to remove new cement in the rear of the house and driveway, grade down and tamper down existing dirt, replace with 4 concrete, install wire mesh (reinforcement wire) and expansion joint, remove loose paint around foundation. The work was completed by Valenza contractors on or about July 2012.

6 Page 6 Restitution In light of the foregoing, the Consumers are entitled to restitution in the amount of $5, Contract Provisions A review of the contract clearly establishes that the following elements were not included in the contract 5 : the information required by 6 RCNY 2-221(a)(1), (a)(2), (a)(4), (a)(5), (a)(8), (a)(9), (a)(10), and 2-221(b). The respondent offered no rebuttal testimony or evidence although given an opportunity to do so. 6 The Consumers established by a preponderance of the credible evidence that the Respondent materially deviated from or disregarded the plans or specifications of terms and conditions agreed to under the contract, by abandoning the project before completion, in violation of Administrative Code (1), and that the Respondent performed the contracted for work in an unskilled or incompetent manner, thereby violating Administrative Code (11). Additional Failures Given the foregoing failure to perform work in a skillful and competent manner, coupled with numerous deficiencies in the contract, it is determined that the Respondent failed to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of Administrative Code Accordingly, the charge shall be sustained and respondent s HIC and HIS licenses shall be revoked. CD&DD ORDER Respondent Islam Zahirul is found guilty of the charges set forth in the Notice of Hearing and is hereby 4 Cost of correction and completion and cost to compensate for additional losses (i.e. $8,380) less the amount unpaid on contract (i.e. $2,450). 5 See Consumer s exhibit 2. 6 The Respondent offered a copy of the contract, dated August 28, It similarly depicts all of the deficiencies noted above (see Respondent s exhibit A).

7 Page 7 Ordered to pay to the Department of Consumer Affairs (DCA) a TOTAL FINE of $10,700 as follows: 1&2. Administrative Code and 6 RCNY 1-12 (2 counts) $ Administrative Code (1) $ 1, Administrative Code (11) $ 1, RCNY 2-221(a)(1) $ 1, RCNY 2-221(a)(2) $ 1, RCNY 2-221(a)(4) $ 1, RCNY 2-221(a)(5) $ 1, RCNY 2-221(a)(8) $ 1, RCNY 2-221(a)(9) $ 1, RCNY 2-221(a)(10) $ 1, RCNY 2-221(b) $ 1, Administrative Code REVOCATION In addition, License No and License No are REVOKED, EFFECTIVE IMMEDIATELY. Respondent is directed to surrender the license documents immediately in person or by mail to DCA s Licensing Center, which is located at 42 Broadway, New York, NY The Respondent is further Ordered to pay RESTITUTION to the Consumer in the amount of $5,930. The Respondent is further Ordered to provide to the Department proof of payment of restitution to the Consumer within thirty (30) days of the date of this decision to the following address: NYC Department of Consumer Affairs, Collections Division-Accounts Receivable, 42 Broadway, 9 th floor, New York, New York or by ing such proof to: collections@dca.nyc.gov It is also hereby DECLARED that the Respondent is deemed unfit to hold any license issued by the Department. This constitutes the recommendation of the Administrative Law Judge. E. DeFontes Administrative Law Judge

8 Page 8 DECISION AND ORDER The recommendation of the Administrative Law Judge is approved. Failure to comply with this order within thirty (30) days shall result in the suspension of the license(s) at issue, and may result in the suspension of any other Department of Consumer Affairs license(s) held by the Respondent. Date: 29 July 2013 cc: jclove616@aol.com James M. Plotkin Deputy Director of Adjudication SKassapian@dca.nyc.gov Jordan Cohen, Esq. DCA Legal Division Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004

9 Page 9 APPEALS RESPONDENT(S): You may file an APPEAL of this decision within 30 days from the date of the decision. You must include with your appeal: (1) a check or money order for $25 payable to DCA; (2) a check or money order payable to DCA for the full amount of the fine you were ordered to pay in the decision; and (3) a check or money order payable to DCA for the entire restitution amount you were ordered to pay in the decision. If you cannot pay the fine because of financial hardship, you may submit a request for a waiver of the requirement to pay the fine. You must submit a copy of your most recent tax returns along with this request. You may file your Appeal by or regular mail, as follows: BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee, total fine (if not requesting a waiver) and restitution to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY BY REGULAR MAIL: Send your appeal, appeal fee, total fine (if not requesting a waiver) and restitution to: : Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY CONSUMER: You may file an APPEAL of this decision within 30 days of the date of the decision. You may file your Appeal by or regular mail, as follows: BY Send your appeal to myappeal@dca.nyc.gov. NOTE: The Appeal Determination may be sent to you by if you choose to submit your motion to us by . BY REGULAR MAIL: Send your appeal to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY Make sure to send a copy of your appeal to each of the Respondents listed in the caption on the Notice of Hearing. IMPORTANT NOTICE TO BOTH PARTIES: YOUR APPEAL MAY BE DENIED IF YOU DO NOT INCLUDE SOME INDICATION THAT YOU HAVE SENT A COPY OF IT TO EACH OF THE OPPOSING PARTIES LISTED IN THE NOTICE OF HEARING.