Consumer Name and the Department of Consumer Affairs v



Joan Levine & Jonah Berman and the Department of Consumer Affairs v. New York Kitchen & Bathroom Co. and Perry Hiiman

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

| |DECISION AND ORDER |

|JOAN LEVINE & JONAH BERMAN | |

| |Violation No(s).: |

|-and- |CD500109277 |

| |DD500109277 |

| | |

|THE DEPARTMENT OF CONSUMER AFFAIRS, |License No(s).: |

|Complainants, |1151152 (HIC) |

| |1087237 (HIS) |

|-against- | |

| | |

|NEW YORK KITCHEN & BATHROOM CO. | |

| |Date: November 9, 2009 |

|-and- | |

| | |

|PERRY HIIMAN, | |

| | |

|Respondents. | |

A hearing was held on April 21, 2009, July 14, 2009 and October 6, 2009.

Appearances: For the Complainants: Joan Levine and Jonah Berman, consumers. For the Respondents: Perry Hiiman, Frank Catanzarite and C. Jaye Berger Esq., attorney.

The Notice of Hearing charged the Respondents with violating the following:

1. Administrative Code of the City of New York (“Administrative Code”) §20-101 for failing to maintain the standards of integrity, honesty, and fair dealing required of licensees.

2. Administrative Code §20-700 and 6 RCNY §1-12 by engaging in a deceptive or unconscionable trade practice.

3. Administrative Code §20-393(1) by deviating from or disregarding the plans or specifications or any terms and conditions agreed to under a home improvement contract in any material respect without the written consent of the owner.

4. Administrative Code §20-393(2) by making a substantial misrepresentation in the solicitation or procurement of a home improvement contract, or making any false promise of character likely to influence, persuade or induce.

5. Administrative Code §20-393(11) by failing to perform work under a home improvement contract in a skillful and competent manner.

6. Title 6 of the Rules of the City of New York §2-221(a)(1) by failing to include in the contract the date of the transaction, the contractor’s name, office address, telephone number and license number; and the salesperson’s name and license number. (3 counts)

7. 6 RCNY §2-221(b) by failing to furnish to the buyer at the time he or she signs the home improvement contract, a separate, completed Notice of Cancellation form, in duplicate and attached to the contract, in form and substance as required by this rule.

8. 6 RCNY §1-05 by failing to clearly identify the Home Improvement Contractor and/or Salesperson 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.

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

Findings of Fact

On July 26, 2006, Joan Levine and Jonah Berman (“Consumers”) entered into a written contract with New York Kitchen & Bathroom Co. (“NYKB”) for renovation of the Consumers’ bathroom located at their residential property on 300 East 33rd Street, Apt. #15P, New York, New York for a total price of $19,755.00. The respondent Perry Hiiman was the salesperson who negotiated the contract, and did not perform any work at the Consumers’ premises. On December 27, 2006, the Consumers and NYKB amended the contract in writing, calling for glass tiles instead of ceramic, and the installation of shower jets and a shower bench. The Consumers agreed to pay an additional $12,900.00, thereby increasing the contract price to $32,655.00.

NYKB began work in the spring of 2007 and completed the work a few months later. The Consumers paid NYKB a total of $31,368.00, leaving an unpaid balance of $1,287.00. The Consumers were unhappy with the quality of the work performed, and NYKB returned in the summer of 2008 to correct and complete work outlined in a punch list. NYKB completed the punch list items in the fall of 2008. However, several rows of tiles in the shower stall were discolored.

The cost to replace and install the discolored tiles in the shower stall is $2,500.00. Additionally, the Consumers paid a $300.00 restocking fee because NYKB ordered an incorrect medicine cabinet.

The respondents’ contract and amendment failed to include the home improvement salesperson’s name and license number.

The respondents provided a separate Notice of Cancellation to the Consumers.

Opinion

The credible evidence establishes that NYKB failed to perform the work in a skillful and competent manner, in that it installed tiles in the shower stall that became discolored. The Consumers failed to submit any estimates specifying the cost to correct the shower stall tiles. Accordingly, I credit Mr. Hiiman’s testimony that it would cost approximately $2,500.00 to correct the problem.

The Consumers’ argument, that had the respondents hired a more qualified subcontractor to install the glass tiles, they would not have been installed unevenly and in such an unskillful manner, is not persuasive in the absence of expert testimony. Mr. Hiiman testified credibly that NYKB performed the tile work skillfully, but that glass tiles are cut individually, often have bubbles or lines running through them and that when installed, will never have a “perfect” appearance like ceramic tiles. Mr. Hiiman added that many customers who choose glass tiles are interested in a more rustic look, and that the installer employed by the respondents was familiar with glass tile installation, and installed the tiles according to industry practice.

The complainants have failed to establish that the respondents engaged in a deceptive or unconscionable trade practice. There was no testimony that the respondents made any false or misleading statements, or unfairly took advantage of the complainants. Accordingly, the charge that the respondents violated Administrative Code Section 20-700 is not sustained.

The credible evidence establishes that the respondents deviated from the plans or specifications agreed to under a home improvement contract, in that NYKB ordered an incorrect medicine cabinet for the consumers. As a result of ordering the wrong medicine cabinet, the consumers had to pay a $300 restocking fee.

The Consumers have failed to establish that the respondents made any substantial misrepresentation or false promise, in violation of Administrative Code Section 20-373(2). The Consumers’ argument, that they were led to believe that their bathroom would look like the ones shown in the respondents’ website, is not meritorious, inasmuch as the bathrooms shown in the website were not constructed with glass tiles. Furthermore, their claim that they were entitled to a 10% discount when they signed the amended contract is not meritorious given their admission that they failed to produce a discount coupon at the time of the signing of the amendment. Accordingly, this charge will not be sustained.

The Consumers are entitled to restitution in the amount of $1,513.00, as follows:

Cost to correct the discolored tiles: $2,500.00

Refund of restocking fee: 300.00

$2,800.00

Less unpaid balance: 1,287.00

Restitution: $ 1,513.00

The credible evidence does establish that the respondents failed to include the salesperson’s license number on their contracts. Accordingly, the charges that the respondents violated 6RCNY Sections 2-221(a) (1) and 1-05 shall be sustained.

Mr. Hiiman testified credibly that a separate Notice of Cancellation was given to the Consumers and supported his testimony with a copy of the contract that indicates that the Consumers signed to receiving the cancellation notice.

Furthermore, the credible evidence fails to establish that the respondents’ actions rise to the level of failing to maintain standards of honesty, integrity and fair dealing required of licensees.

ORDER

CD500109277:

Respondent New York Kitchen & Bathroom Co. is found guilty of charges numbered 3, 5, 6 and 8, and is hereby

Ordered to pay to the Department a TOTAL FINE of $1,000, as follows:

Charge Fine

3. Administrative Code §20-393(1) $ 100

5. Administrative Code §20-393(11) $ 500

6. 6 RCNY §2-221(a)(1) $ 200

8. 6 RCNY §1-05 $ 200

The respondent is found not guilty of charges numbered 1, 2, 4 and 7 and these charges are dismissed.

DD500109277:

Respondent Perry Hiiman is found guilty of charges numbered 3, 5, 6 and 8, and is hereby

Ordered to pay to the Department a TOTAL FINE of $1,000.00, as follows:

Charge

Fine

3. Administrative Code §20-393(1) $ 100

5. Administrative Code §20-393(11) $ 500

6. 6 RCNY §2-221(a) (1) $ 200

8. 6 RCNY §1-05 $ 200

The respondent is found not guilty of charges numbered 1, 2, 4 and 7 and these charges are dismissed.

CD500109277 & DD500109277

Respondents New York Kitchen & Bathroom Co. and Perry Hiiman are hereby ORDERED to pay RESTITUTION to the Consumer in the amount of $1,513.00, for which they are each jointly and severally liable.

This constitutes the recommendation of the Administrative Law Judge.

_______________________________

Esther Simon

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

This constitutes the Decision and Order of the Department.

_____________________________

Bruce M. Dennis

Deputy Director of Adjudication

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 copy of your most recent tax returns along with a request for a waiver of the requirement to pay the fine. Send your appeal and any request to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11th Floor, New York, NY 10038. Make sure to send copies of your appeal TO THE CONSUMER at the Consumer’s address, AND to DCA’s LEGAL COMPLIANCE AND FITNESS DIVISION at 42 Broadway, 9th Floor, New York, NY 10004.

CONSUMER: You may file an APPEAL of this decision within 30 days of the date of the decision. You must include with your appeal a check or money order for $25 payable to DCA. Send your appeal to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11th Floor, New York, NY 10038. 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.

|Mail payment in the enclosed envelope addressed to: |

|NYC Department of Consumer Affairs |

|Collections Division |

|42 Broadway, 9th Floor |

|New York, NY  10004 |

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