Sarah and Joseph Levi and the Department of Consumer Affairs v. H&R Painting Corp. and Giselle D. Curiel
CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS DECISION AND ORDER SARAH AND JOSEPH LEVI and Violation Nos.: THE DEPARTMENT OF CONSUMER AFFAIRS, CD500105308 Complainants, DD500105308
-against- License Nos.: H&R PAINTING CORP. 346 EAST 173 STREET 1247786 (HIC) BRONX, NY 10457
AND 1247782 (HIS) GISELLE D. CURIEL 346 EAST 173 STREET BRONX, NY 10457, Date: June 13, 2008 Respondents.
Appearances: For the Complainants: Sarah Levi and Joseph Levi. Although duly notified of the time and place of the hearing, the respondents failed to appear. An inquest was held on May 15, 2008. The respondents are charged with violating the following:
1. § 20-101 of the Code 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. §20-700 of the New York City Administrative Code by engaging in deceptive trade practice in the negotiation and performance of a Home Improvement Contract, in that Respondent received payment for services not performed.
3. § 20–700 of the Code (the “Consumer Protection Law”) and Title 6 of the Rules of the City of New York (“6 RCNY”) section 1-12 by engaging in a deceptive trade practice by promising to complete the contracted work and failing to do so. CD500105308 DD500105308 Page 2
4. §20-393 (11) of the Code by failing to complete the work agreed to under the home improvement contract.
5. §20-393 (11) of the Code by failing to perform work under a home improvement contract in a skillful and competent manner.
6. §20-393 (1) of the Code by deviating from the plans or specifications, terms or conditions agreed to under the home improvement contract.
7. §20-393 (9) of the Code by allowing Carlos Herrara and Peter Rivera, both Unlicensed Salespeople to solicit and sell a home improvement contract on its behalf, without home improvement salesperson licenses as required by § 20-387 (a) of the Code.
8. §20-393 (15) of the Code by using a contract form which fails to disclose a named contractor principal.
9. 6 RCNY §2-221 (a) (1) by failing to include in the Contract: the contractor’s license number; the salesperson's name; and the salesperson’s license number.
10. 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.
11. 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.
12. 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.
13. 6 RCNY §2-221 (a) (2) by failing to state in the Contract whether a definite completion date had been determined to be of the essence.
14. 6 RCNY §2-221 (a) (3) by failing to include in the Contract the materials to be provided to the owner, including make, model number or any other identifying information.
15. 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.
16. 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.
N.Y.C. DEPARTMENT OF CONSUMER AFFAIRS 66 JOHN STREET NEW YORK, N.Y. 10038 (212) 361-7770 WWW.NYC.GOV/CONSUMERS CD500105308 DD500105308 Page 3 17. 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.
18. 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.
19. 6 RCNY §2-221 (b) by failing to provide the required separate Notice of Cancellation to the owner.
20. 6 RCNY §1-05 by failing to clearly identify the home improvement contractor license number 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.
21. 6 RCNY §1-05 by failing to clearly identify the home improvement salesperson license number as a New York City Department of Consumer Affairs license number on advertisements, letterheads, receipts or other printed matter.
22. 6 RCNY §1-08 by failing to notify the Department in writing of any change of all partners of partnership licensees within 10 days of the change.
23. 6 RCNY §1-13 by failing to respond to the Department’s request for a response to the complaint within twenty days of the date that the complaint was mailed to Respondents.
Findings of Fact
The consumer complainants, Sarah and Joseph Levi (“consumers”) are the owners of two apartments located at 100 Bennett Avenue, New York, NY. On December 27, 2006 the consumers entered into a contract whereby H&R Painting (“H&R”) agreed to perform certain home improvement work at the consumer’s home for $54,500. Carlos Herrara (“Herrara”) and Peter Rivera (“Rivera”) were the salespersons on that contract. Herrara and Rivera told the consumers that they were the owners of H&R however neither of them were licensed by the Department of Consumer Affairs (“Department”). Respondent Giselle D. Curiel (“Curiel”) is the sole principal of H&R and is also licensed by the Department as a home improvement salesperson under license 1247782.
The improvement work involved creating one duplex apartment by combining two separate apartments one located on top of the other. The work consisted of the following:
Install connecting staircase between two apartments; Scrape, plaster and paint all walls and ceilings; Install new tile floor in bathroom on first floor; Install new kitchen on second floor by removing wall and combining dinette area; Subdivide first floor kitchen and convert into a laundry room and study room; Enlarge closet in master bedroom;
N.Y.C. DEPARTMENT OF CONSUMER AFFAIRS 66 JOHN STREET NEW YORK, N.Y. 10038 (212) 361-7770 WWW.NYC.GOV/CONSUMERS CD500105308 DD500105308 Page 4 Combine hallway and entrance closet on each floor into one large closet and install sliding doors; Convert other hallway closet on second floor into recessed shelving unit; Sand and polyurethane all floors except the kitchen on second floor; Install floor tiles in bathroom and kitchen on second floor; Install new sink mirror and lights in both bathrooms; Install six recessed lighting units in living room; Remove all wall mounted electrical outlets and install inside walls; Remove any old malfunctioning electric outlets or old electrical wires throughout both apartments; and Install new light fixture in master bedroom.
Before the work started, on January 8, 2007 as per Herrara’s and Rivera’s instructions the consumers paid H&R $10,000 by personal check. The reverse side of this check shows that Curiel endorsed it. When the work began on January 16, 2007 as per Herrara’s and Rivera’s instructions, the consumers paid H&R $15,000 and Peter Rivera $2000 by two personal checks. The reverse side of the check for $15,000 was also endorsed by Curiel.
Finally, on March 13, 2007 as per Herrara’s and Rivera’s instructions the consumers paid H&R $10,000 by personal check. In late March 2007 Herrara requested more money from the consumers but they refused to pay him because he failed to properly complete all the contracted work.
When the work began both Herrara and Rivera and their workers began gutting the kitchens, closets and the area where the new staircase was going to be installed. However, shortly after the work began all the workers failed to show up according to the agreed upon schedule. Construction debris was not properly disposed of. As the job progressed the consumers discovered that the new walls were slanted, new doorways were the wrong dimensions, new sheetrock walls were not smooth or properly taped together and joint compound was not properly applied. Installed floor tiles were cracked and not flat on the floor. Moreover the bathtub was used to clean tiling tools and as a result tile cement clogged the drain. Furthermore, electrical wires were left hanging, a new circuit breaker was not properly installed and the staircase was not installed.
When the consumers spoke to Herrara and Rivera about these problems they promised to correct them but failed to do so. At other times Rivera asked the consumers for more money because he claimed he had none left to fix the defective work. When the consumers refused to pay more money, Herrara and Rivera removed all their tools and abandoned the job. The consumers called H&R multiple times at the telephone number listed on the contract and left messages but their calls were not returned.
The consumers hired another contractor who charged them $29,000 to repair and complete H&R’s shoddy work. In addition the consumers had to purchase additional floor tiles for $423.36.
The consumers never met Curiel and she was not the home improvement salesperson on the home improvement contract.
N.Y.C. DEPARTMENT OF CONSUMER AFFAIRS 66 JOHN STREET NEW YORK, N.Y. 10038 (212) 361-7770 WWW.NYC.GOV/CONSUMERS CD500105308 DD500105308 Page 5 H&R allowed Herrara and Rivera to solicit and sell a home improvement contract on its behalf.
Opinion
The credible evidence establishes that H&R entered into the aforesaid home improvement contract with the consumers, accepted $37,000 from them and then failed to properly and completely perform the work in a skillful and competent manner in violation of section 20-393(11) of the Code. Accordingly charges #4 and #5 shall be sustained as against H&R.
The credible evidence further establishes that H&R engaged in a deceptive trade practice by promising to perform work and then failing to do so in violation of section 20-700 of the Code and 6 RCNY section 1-12. Accordingly charge #3 shall be sustained as against H&R.
The credible evidence further establishes that H&R deviated from the plans and specifications agreed to under the contract in violation of Administrative Code sections 20- 393(1). Accordingly charge #6 shall be sustained as against H&R.
By engaging in all of the foregoing it is determined that H&R failed to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of §20-101 of the Code. Accordingly, charge number 1 shall be sustained as against H&R.
The credible evidence further establishes that Curiel cashed checks that were made payable to H&R while the contracted work was being performed. Accordingly it is determined that H&R allowed Herrara and Rivera, both unlicensed salespeople, to solicit and sell a home improvement contract on its behalf, in violation of §20-387(a) of the Code. Consequently charge #7 shall be sustained as against H&R.
Finally, the credible evidence establishes that Curiel did not supervise or perform any of the contracted improvement work and was not the home improvement sales person. Accordingly charges numbered 1 through 23 shall be dismissed as against her.
The consumers credibly established that they are entitled to restitution in the amount of $12,423.36, computed as follows:
Agreed upon total contract amount: $54,500
Total amount paid to respondents: $37,000
Unpaid balance on contract: $17,500
Total amount paid to complete and correct
N.Y.C. DEPARTMENT OF CONSUMER AFFAIRS 66 JOHN STREET NEW YORK, N.Y. 10038 (212) 361-7770 WWW.NYC.GOV/CONSUMERS CD500105308 DD500105308 Page 6 H&R’s shoddy work: $29,423.36
Restitution amount:1 $12,423.36
Lastly, the respondents violated 6RCNY §1-14 by failing to appear at the duly noticed hearing.
Order
On CD 500105308
Respondent H&R Painting Corp. is found guilty of charges numbered 1 through 7, and of violating 6 RCNY §1-14.
In addition, upon default, H&R Painting Corp. is found guilty of charges numbered 8 through 23.
Respondent H&R Painting Corp. is hereby ordered to pay to the Department a TOTAL FINE of $4300. as follows:
Charges 2 & 3 $350 Charges 4 & 5 $100 Charge 6 $100 Charge 7 $600 Charge 8 $250 Charge 9 $200 Charges 10, 11, 12 & 13 $200 Charge 14 $200 Charge 15 $200 Charge 16 $200 Charge 17 $200 Charge 18 $200 Charge 19 $350 Charge 20 $100 Charge 21 $100 Charge 22 $200 Charge 23 $250 6RCNY §1-14: $500
In addition, HIC License #1247786 is REVOKED, EFFECTIVE IMMEDIATELY. H&R Painting Corp. is directed to surrender its HIC license document to the Licensing Division immediately. If it 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
1 Amount paid to repair and complete H&R’s substandard work minus the amount consumer owed on initial contract ($29,423.36 - -$17,500= $12,423.36).
N.Y.C. DEPARTMENT OF CONSUMER AFFAIRS 66 JOHN STREET NEW YORK, N.Y. 10038 (212) 361-7770 WWW.NYC.GOV/CONSUMERS CD500105308 DD500105308 Page 7 in the operation of his business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the
On DD 500105308:
Respondent Giselle D. Curiel is found not guilty of charges numbered 1 through 23.
On CD 500105308
Respondent H&R Painting Corp. is hereby Ordered to pay restitution to consumers Sarah and Joseph Levi in the amount of $12,423.36.
This constitutes an Order of the Department.
______Thomas P. Coyne Administrative Law Judge
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; and a 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 days from 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 WWW.NYC.GOV/CONSUMERS