Magan Hardeen and the Department of Consumer Affairs v



David and Barbara D’Albero and the Department of Consumer Affairs v. Destino Construction Inc. and Brandon Lentine

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

| |DECISION AND ORDER |

|DAVID AND BARBARA D’ALBERO | |

| |Violation Nos.: |

| |CD500098142 |

|-and- |DD500098142 |

| | |

| |License Nos.: |

|THE DEPARTMENT OF CONSUMER AFFAIRS, |1177775 (HIC) |

|Complainants, |1177767 (HIS) |

| | |

|-against- |Licensees’ Address: |

| |73 Gary Place |

|DESTINO CONSTRUCTION INC. |Staten Island, NY 10314 |

| | |

|-and- |Date: March 10, 2009 |

| | |

|BRANDON LENTINE, | |

| | |

|Respondents. | |

A hearing was held on June 10, 2008, September 17, 2008 and October 21, 2008.

Appearances: For the Complainants: David & Barbara D’Albero; Remy Larson, Esq. For the Respondents: Brandon Lentine, vice-president; Joseph Lentine, witness; Jeff Tomei, Esq.

The Notice of Hearing charges 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 in that the respondents failed to complete work required by the contract.

2. Administrative Code §20-700 and Title 6 of the Rules of the City of New York (“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 §20-393(11) by failing to perform work under a home improvement contract in a skillful and competent manner.

4. 6 RCNY §2-221(a)(2) by failing to include in the contract the approximate dates, or estimated dates, when the work will begin and be substantially completed, including a statement of any contingencies that would materially change the approximate or estimated completion date, and a specification whether or not the contractor and the owner have determined a definite completion date to be of the essence.

5. 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.

6. 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 purpose of the Contract.

7. 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.

8. 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.

9. 6 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 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.

10. 6 RCNY §2-221(b) by failing to provide a separate Notice of Cancellation to the owner.

11. 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 sent for reply.

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

Findings of Fact

On June 15, 2005, consumers David and Barbara D’Albero and Professional Builders Ltd. (“Professional”) entered into a written contract whereby Professional agreed to perform home improvement work at the consumers’ residence for a total of $240,000. The agreement was negotiated and signed on Professional’s behalf by Joseph Lentine (“Joseph”), despite the fact that the fourth line of the contract listed “Brandon Lentine/Destino Construction” as the Home Improvement Salesperson. The contract document set forth HIC license #177775 [sic]. Pursuant to the terms of the agreement, the consumers delivered to Joseph checks totaling $173,500, each check made payable to “Professional Builders.”

Neither Professional nor Joseph are licensed by the Department of Consumer Affairs. Brandon Lentine (“Brandon”), who is Joseph’s son, is a licensed home improvement salesperson, but had no involvement with the negotiation or execution of the written agreement with the consumers. He is also a principal of licensed home improvement contractor, Destino Construction, Inc. (“Destino”), license #1177775, which he owns with his mother (the ex-wife of Joseph).

Unbeknownst to Brandon, Joseph set forth Destino’s HIC license number on the written agreement. Professional’s place of business is situated at 1290 Forest Hill Road, Staten Island, NY. Destino’s place of business is situated at 73 Gary Place, Staten Island, NY.

Professional began working in or about August 2005. Joseph subsequently hired Destino as a subcontractor, and Destino performed demolition and carpentry work at the consumers’ residence. In addition, Joseph asked Brandon to get permits for the job with Destino’s license number. While performing the demolition work, Brandon posted a sign in front of the consumers’ house, setting forth Destino’s name. The consumers never paid any monies to Brandon or Destino for the Professional contract.

Prior to January 2006, Professional stopped working at the consumer’s residence and the consumers stopped paying Professional. Soon thereafter, the consumers approached Brandon and asked him to complete work begun by Professional. Although Brandon offered the consumers a proposed contract, that contract was never executed by the parties.

Opinion

The credible evidence establishes that Destino was not the home improvement contractor with whom the consumers contracted, and that Brandon neither negotiated nor signed the contract. The letterhead on the contract was Professional’s, and Joseph was the salesperson who negotiated and signed it. Furthermore, the consumers’ checks were all made payable to Professional’s order, and were delivered to Joseph, not Brandon.

The consumers argue that Destino should be held liable because the fourth line of the contract listed “Brandon Lentine/Destino Construction” as the Home Improvement Salesperson, that Destino’s HIC license number was listed on the top of the contract, that Destino’s name and license number were used to obtain permits, that Brandon and Destino performed demolition work at the consumer’s residence, and that Brandon posted a “Destino Construction” sign in front of their residence. They also argue that Brandon and Destino performed more than just demolition work. Because of the foregoing, the consumers argue that they believed they were dealing with Destino, even though they paid Professional, and Professional’s name was on the contract.

Even though Brandon admits that Destino performed demolition work at the consumer’s residence and that he placed Destino’s sign in front of the house, he credibly explained that Destino worked on the residence only as a subcontractor for Professional, and that many subcontractors post their signs at jobsites. His testimony that Joseph used his name and license number on the contract without his knowledge or consent was supported by Joseph’s own admission. Brandon credibly argued that neither he nor Destino would have any reason to allow anyone to use their respective licenses and that he would not jeopardize the good standing of his and Destino’s licenses by allowing such improper usage. Although Brandon admitted that Destino obtained permits for the job, he credibly explained that “it’s not uncommon” for a subcontractor to do so.

Upon consideration of all of the foregoing, it is determined that the complainants failed to establish by a preponderance of the credible evidence that Destino was the home improvement contractor with which the consumers contracted, or that Brandon was the responsible salesperson. Accordingly, charges numbered 1 through 10 shall be dismissed. Further, the complainants failed to present any evidence in support of the charge that the respondents violated 6 RCNY §1-13. Therefore, charge 11 shall also be dismissed.

Lastly, Administrative Code Section 20-386(5) states, in relevant part, that a “contractor” means any person or salesperson who undertakes or offers to undertake or agrees to perform any home improvement, whether or not such person is a prime contractor or subcontractor with respect to the owner. In this case, the credible evidence establishes that Destino and Brandon were subcontractors who performed only demolition and some carpentry work. Whereas, they could possibly be held responsible for any proven unsatisfactory work that they performed, the complainants did not present any evidence to establish that their particular work was unskilled or incompetent. Accordingly, charge #3 shall be dismissed.

Order

CD500098142 and DD500098142

The respondents Destino Construction Inc. and Brendon Lentine are found not guilty of violating the charges set forth in the Notice of Hearing and these charges are dismissed as against them.

This constitutes the recommendation of the Administrative Law Judge.

_______________________________

David S. Paul

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

cc: Remy Larson, Esq.

Law Offices of Howard M. File, Esq. PC

260 Christopher Lane, Suite 102

Staten Island, NY 10314

Jeffrey A. Tomei, Esq.

Tomei Building

136 Bay Street

Staten Island, NY 10301

Joseph Lentine

1290 Forest Hill Road

Staten Island, NY 10314

NOTICE TO RESPONDENT(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 for rehearing (1) a check or money order payable to the Department of Consumer Affairs for the sum of $25; and (2) a check or money order payable to the Department of Consumer Affairs for the amount of the fine imposed by the decision, or an application for a waiver, based upon financial hardship, of the requirement to pay the fine as a requisite for an appeal, supported by evidence of financial hardship including the most recent tax returns you have filed; and (3) a check or money order payable to the Department of Consumer Affairs for the entire restitution amount ordered by the decision. In addition, you must serve a copy of your appeal or motion for rehearing, and any related documents, on the Legal Services Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004, as well as on the consumer complainant(s).

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 of 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).

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download