DEPARTMENT OF CONSUMER AFFAIRS



Matthew Gaor and the Department of Consumer Affairs v. Ina I. Cartrette d/b/a J&I Contracting, Ina I. Cartrette, and Jimmie R. Cartrette

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

|MATTHEW GAOR |DECISION AND ORDER |

| | |

|and |Violation Nos.: |

| | |

|THE DEPARTMENT OF CONSUMER AFFAIRS, |CD500100510 (Ina I. Cartrette d/b/a J&I Contracting) |

| | |

|Complainants, |DD500100510 (Ina I. Cartrette) |

| |LL5084151 (Jimmie R. Cartrette) |

|-against- |LL5084152 (Jimmie R. Cartrette) |

| | |

|INA I. CARTRETTE d/b/a J&I CONTRACTING, |License Nos.: |

|& INA I. CARTRETTE | |

|16 Shenandoah Avenue |1210448 – HIC |

|Staten Island, NY 10314 |(Ina I. Cartrette d/b/a J & I Contracting) |

| |1210446 - HIS (Ina I. Cartrette) |

|-and- |1083790 - HIC (Jimmie R. Cartrette) |

| |1083791- HIS (Jimmie R. Cartrette) |

|JIMMIE R. CARTRETTE | |

|516 Arden Avenue | |

|Staten Island, NY 10307, |Date: September 25, 2007 |

| | |

|Respondents. | |

An inquest on the above-captioned matter was begun on July 5, 2007 and was continued and concluded on August 20, 2007.

Appearances: For the Complainants: Matthew Gaor. Although duly notified of the time and place of the hearing, the respondents failed to appear.

The respondents are charged with violating the following:

1. Administrative Code of the City of New York §20-700 by engaging in deceptive or unconscionable trade practice in the negotiation and performance of a Home Improvement Contract, in that Respondent received payment for services not performed and misrepresented the true identity of the Home Improvement Contractor.

2. Administrative Code of the City of New York §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; in that J&I Contracting and Ina Cartrette, as President, abandoned the Contract work and did not perform any part of it.

3. Respondent Ina Cartrette, violated Administrative Code of the City of New York §20-392(2) by failing to disclose her relationship to Respondent Jimmie Cartrette in the license application submitted to the Department.

4. Administrative Code of the City of New York §20-392(9) by allowing an unlicensed Home Improvement Salesperson to negotiate and execute contracts with claimants on behalf of Respondent J&I and with the approval of Respondent Ina Cartrette.

5. Administrative Code of the City of New York §20-393(1) by disregarding the plans or specifications agreed to under a home improvement contract in that, without written consent of the owner, respondents did not perform the contracted work.

6. Administrative Code of the City of New York § 20-393(11) by failing to perform work under a home improvement contract in a skillful and competent manner in that they failed to perform the contracted work.

7. Title 6 of the Rules of the City of New York (“6 RCNY”) §1-01.1(a) by failing to provide full and truthful responses to all information requested on an application submitted to the Department.

8. 6 RCNY §1-01.1(b) by concealing information, making a false statement in a signed statement filed with an application to be filed with the Department.

9. 6 RCNY §1-12 by failing to comply with the Consumer Protection Law of 1969 as amended and all regulations promulgated under that law in that they misrepresented the true identity of the Home Improvement Contractor and failed to perform work under a contract

10. 6 RCNY §2-221(a) by failing to provide claimant with a written contract or otherwise deprive him of his right to a fully executed copy of said contract.

Findings of Fact

The consumer is the owner of the one-family house situated at 11 Rye Avenue, Staten Island, NY. In February 2006, he sought to extend the rear of the house so as to enlarge the basement and kitchen. He retained architect Charlie Magrino, who drafted and filed the plans with the Department of Buildings.

The consumer’s brother lived next door to respondents Ina I. Cartrette (“Ina”) and Jimmie R. Cartrette (“Jimmie”). In early September 2005, he arranged for the consumer to meet with Jimmie. At all times, Jimmie represented that he was a home improvement contractor doing business as J&I Contracting (“J&I”), and referred to Ina simply as his wife.

After discussing the project with Jimmie, the consumer and J&I entered into a written contract in November 2005 whereby J&I agreed to construct the extension pursuant to the aforesaid plans. Jimmie provided the consumer with a copy of the written contract at that time. Jimmie promised that the work would be finished by the end of February 2006. This completion date was essential to the consumer because, during the construction, he would be moving into his parents’ house which would only be available until the end of February, at which time his parents were to return from Florida.

J&I began work in early December 2005. Sometime thereafter, J&I and the consumer verbally amended the contract to include the following additional work:

• Provide and install cultured stone facing for the front of the house.

• Provide and install pavers in the front and the back of the house.

• Construct new fronts steps.

• Provide and install central air conditioning.

• Provide and install a new furnace.

• Renovate the first floor bathroom.

• Provide and install two new bay windows on the first floor and modify the roof to accommodate the new windows.

• Construct a new rear deck.

• Install a new drywell.

• Upgrade the electrical system in the entire house.

The total contract price, including the extra work, totaled $104,880. However, because the consumer paid $3,300 directly to vendor Family Tile for the kitchen floor tile, for which J&I was responsible, the contract price was reduced to $101,580.

J&I began work in the first week of December 2005. About that time, the consumer and his family moved out of the house, to his parents’ house. J&I continued to work regularly until the latter part of February 2006, when work began to slow down. When J&I failed to complete the extension by the end of February 2006, as promised, the consumer made calls to Jimmie, which were not returned. Although work continued, it was sporadic. The consumer never agreed in writing that the completion date could be extended.

Finally, at the end of May 2006, Jimmie agreed to a meeting at the consumer’s house. At the meeting, he became very belligerent, threatening and abusive, at which point he walked off the job. Shortly thereafter, the consumer filed his complaint with the Department of Consumer Affairs. It was only at that time when the consumer discovered that his copy of the original contract was missing from his house and, consequently, he has no copy of the contract as of this time. Shortly thereafter, other homeowners on Staten Island who had used J&I contacted the consumer. Some of these other homeowners had filed complaints with the District Attorney of Richmond County. The other homeowners advised the consumer that Jimmie was not licensed as a home improvement contractor.

As of the time the respondents walked off the job, the consumer had paid J&I a total of $91,580, leaving an unpaid balance of $10,580, and the following work was either not performed, partially performed, or was defective:

• J&I did not supply enough pavers required for the front and back of the house and did not install any of them.

• The rear deck and exterior steps were not constructed.

• The dry well was not constructed.

• The gutters and leaders were not provided or installed.

• The electrical system was not upgraded.

• The sod in front and in back of the house was not replaced.

• The enclosure & shower door for the first floor bathroom were neither provided nor installed.

• The front roof was not modified to accommodate the new bay windows.

• The granite countertops, sink and faucets were neither provided nor installed.

• The hardware for the new kitchen sliding door was neither provided nor installed.

• The backyard was not fully leveled.

• The rear steps leading to the basement were not finished.

• J&I built the front steps but did not provide and install the railings.

• The siding was not completely installed.

• The top soil and sod were not replaced.

• The furnace J&I provided was installed incorrectly.

The consumer paid a total of $28,463.93 for the following for materials that the respondents were supposed to pay out of the contract price, and to correct and complete the job:

DATE VENDOR PURPOSE AMOUNT PAID

6/28/06 All Phase Electrical Upgrade the

electrical system $4,950.00

6/20/06 Semo’s Masonry Provide and install pavers/stucco 4,200.00

3/26/06

5/1/06 Scaran Oil Complete boiler installation 873.53

3/39/06 Capital Paint Paint for kitchen 176.41

3/29/06 Sears Carpet &

5/10/06 Upholstery Carpet cleaning 207.00

4/11/06 Classic Tile, Inc. Tile for kitchen floor 4,268.31

4/13/2006 Family Tile Tile for 1st floor bathroom 248.88

5/20/06 Casale Tile Completion tile for 1st floor bathroom 90.00

5/26/06 Richmond Stone

Fabricators, Inc. For granite kitchen countertops 3,600.00

6/16/06 John Dinaso & Sons Materials to correct front roof over

2 bay windows 201.08

6/19/06 Home Depot Rental Rental for equipment to install

Aluminum capping 143.06

6/20/06 Green Side Up Nursery For top soil and sod replacement 410.38

6/27/06 Kings Material Co. For additional pavers 552.82

7/10/06 Gutter Time For gutters, leaders & installation 1,060.00

10/6/06

& 11/18/06 Mazza Railings For front step railings 1,450.00

3/06-6/06 Home Depot For nails, decking materials,

Plumbing supplies, etc. 3,975.71

7/24/07 Grand Mirror To supply & install shower enclosure

& door for 1st floor bathroom 2,056.75

$28,463.93

Opinion

The credible evidence establishes that respondent Jimmie R. Cartrette engaged in a deceptive trade practice by misrepresenting that he, and not Ina, was the licensed home improvement contractor doing business as J&I Contracting. By entering into the aforesaid home improvement contract, accepting $91,580 from the consumer, then failing to complete the work, defectively installing the furnace, and Jimmie becoming threatening and abusive, it is determined that both Ina I. Cartrette d/b/a J&I Contracting and Jimmie R. Cartrette violated Administrative Code Sections 20-700 and 20-393(1), 20-393(11) and 6 RCNY §1-12. Accordingly, charges numbered 1, 5, 6 and 9 shall be sustained as against respondents Ina I. Cartrette d/b/a J&I Contracting and Jimmie R. Cartrette. It is further determined that, by engaging in the aforesaid actions, respondents Ina I. Cartrette d/b/a J&I Contracting and Jimmie R. Cartrette fail to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of Administrative Code §20-101. Accordingly, charge #2 shall be sustained as against respondents Ina I. Cartrette d/b/a J&I Contracting and Jimmie R. Cartrette.

The consumer credibly established that he is entitled to restitution in the amount of $17,883.93, calculated as follows:

Cost to correct and complete work: $28,463.93

Less unpaid balance on J&I contract: - $10,580.00

Restitution Due: $17,883.93

The claimants presented no evidence in support of the charge that Ina I. Cartrette d/b/a J&I Contracting violated Administrative Code Section 20-392(2). Accordingly, charge #3 shall be dismissed as against respondent Ina Cartrette, in her capacity as salesperson, and Ina I. Cartrette d/b/a J&I Contracting.

The allegation set forth in charge #4 fails to properly allege a violation of Administrative Code Section 20-392(9). Accordingly, charge #4 shall be dismissed as against all respondents. In addition, the complainants failed to present any evidence to establish violations of 6 RCNY Sections 1-01.1(a) and (b). Accordingly, charges numbered 7 and 8 shall be dismissed as against all respondents.

Lastly, regarding charge #10, the consumer failed to establish by a preponderance of credible evidence that respondents removed his copy of the written home improvement contract from his house. Accordingly, charge #10 shall be dismissed as against all respondents.

The evidence establishes that Ina I. Cartrette was not personally involved in the subject transaction in her capacity as a salesperson (as opposed to her capacity as home improvement contractor). Accordingly, charges numbered 1, 2, 5, 6 and 9 shall be dismissed as against respondent Ina I. Cartrette in her capacity as home improvement salesperson.

Order

Regarding CD500100510 against Ina I. Cartrette d/b/a J&I Contracting:

Respondent Ina I. Cartrette d/b/a J&I Contracting is found guilty of charges numbered 1, 2, 5, 6, and 9.

Ina I. Cartrette d/b/a J&I Contracting is ordered to pay to the Department a TOTAL FINE of $1,850, as follows:

Charges 1 & 9: $ 350

Charge 5: $1,000

Charge 6: $ 500

In addition, HIC License #1210448 is REVOKED, EFFECTIVE IMMEDIATELY. Ina I. Cartrette is directed to surrender her license document to the Licensing Division immediately. If she continues to operate with a revoked license, she 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 her business and/or the removal of items sold, offered for sale, or utilized in the operation of her business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the “Padlock Law”).

Charges numbered 3, 4, 7, 8 and 10 are hereby dismissed as against Ina I. Cartrette d/b/a J&I Contracting.

Regarding DD500100510 against Ina I. Cartrette:

Respondent Ina I. Cartrette, in her capacity of home improvement salesperson, license #1210446, is found not guilty of charges numbered 1 through 10 and all charges alleged in DD500100510 are hereby dismissed.

Regarding LL5084151 and LL5084152 against Jimmie R. Cartrette

Respondent Jimmie R. Cartrette is found guilty of charges numbered 1, 2, 5, 6 and 9.

Jimmie R. Cartrette is ordered to pay to the Department a TOTAL FINE of $1,850, as follows:

Charges 1 & 9: $ 350

Charge 5: $1,000

Charge 6: $ 500

In addition, HIC License #1083790 and HIS License #1083791 are each REVOKED, EFFECTIVE IMMEDIATELY. Jimmie R. Cartrette is directed to surrender his license documents to the Licensing Division immediately. If he continues to operate with revoked licenses, he 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 his business and/or the removal of items sold, offered for sale, or utilized in the operation of his business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the “Padlock Law”).

Charges numbered 3, 4, 7, 8 and 10 are hereby dismissed as against Jimmie R. Cartrette.

Regarding CD500100510, LL5084151; LL5084152:

Respondents Ina I. Cartrette d/b/a J&I Contracting and Jimmie R. Cartrette are hereby Ordered to pay restitution to consumer Matthew Gaor in the amount of $17,883.93, for which they are each jointly and severally liable.

This constitutes the recommendation of the Administrative Law Judge.

__________________________

Bruce M. Dennis

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

This constitutes the Decision and Order of the Department.

___________________________

Nancy J. Schindler

Deputy Director of Adjudication

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 Litigation and Mediation 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).

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