NYC DEPARTMENT OF CONSUMER AFFAIRS



Department of Consumer Affairs and Duran v. J. Arceri Home Improvement, Inc.

NYC DEPARTMENT OF CONSUMER AFFAIRS

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MIGUEL DURAN

- and - NOTICE OF HEARING

NYC DEPARTMENT OF CONSUMER AFFAIRS,

Complainants, CD # 500106806

DD # 500106806

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J. ARCERI HOME IMPROVEMENTS INC. Lic. # HIC 1126603

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JOHN J. ARCERI, Lic. # HIS 0977723

Respondents-Licensees. June 13, 2008

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

An inquest on the following charges set forth in the Notice of Hearing was held on May 1, 2008:

1. Respondents violated § 20-101 of the Code by failing to maintain the standards of integrity, honesty and fair dealing required of licensees when they abandoned and refused to honor their obligations pursuant to the contract with Complainant.

2. Respondents violated § 20-101 of the Code by failing to maintain the standards of integrity, honesty and fair dealing required of licensees when they failed to correct defects in their work or failed to complete work under the contract.

3. Respondents violated § 20-393(1) of the Code by deviating from and disregarding the plans or specifications or terms and conditions agreed to under the contract in a material respect when they failed to complete the work under the terms of the contract.

4. Respondents violated § 20-393(11) of the Code by failing to perform work under a home improvement contract in a skillful and competent manner.

5. Respondents violated § 20–700 of the Code (the “Consumer Protection Law”) and 6 RCNY §1-12 by engaging in a deceptive trade practice by promising to complete the contracted work and failing to do so.

The respondents are also charged with violating the following:

6. Respondents violated 6 RCNY § 2-221 (a) (1), by failing to include the salesperson’s license number in the contract.

7. Respondents violated 6 RCNY § 2-221(2) by failing to specify in the contract whether or not the contractor and the owner determined a definite completion date to be of the essence.

8. Respondents violated 6 RCNY § 2-221(10)(b) by failing to provide Complainant with a separate completed form in duplicate captioned “NOTICE OF CANCELLATION” at the time at the time the parties entered into the contract.

Findings of Fact

The consumer owns a house located at 910 Swinton Avenue, Bronx, NY. On April 28, 2006, the consumer entered into a home improvement contract with J. Arceri Home Improvements Inc. and John J. Arceri (“Respondents”) to install the following: a bay window, 8 additional windows throughout the house, and stones in front of the house. The consumer paid respondents $4,600 to perform this project. Respondent John Arceri acted as salesman for the contractor, and the work was performed by workers from J. Arceri Improvements, Inc.

Respondents began the job by ordering the windows. After delays and failures to appear when expected, the respondents’ workers installed the 8 small windows and began the bay window installation. However, the new window was too small, so the workers had to install wood in the frame to fill the surrounding space. The workers completed the window installation but did not install the molding or the stonework in front of the house. The consumer installed the molding and completed the windows himself with assistance from hired help whom he paid $450 to complete the windows and $250 for the molding.

Opinion

The credible evidence establishes that the respondents failed to timely and satisfactorily perform and complete the work as agreed upon under the aforesaid home improvement contract, in violation of Administrative Code §20-393(1) and §20-393(11). Accordingly, charge #’s 3 and 4 are sustained against respondents. It is further determined that, by engaging in the aforesaid actions, the respondents failed to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of Administrative Code §20-101. Accordingly, charge #’s 1 and 2 are sustained.

The credible evidence further establishes that the consumer is entitled to restitution in the amount of $700, computed as follows:

Amount paid for molding installation: $250

Amount paid to install windows: $450

Subtotal $700

(Less amount due on contract $300)

Total $400

Insufficient evidence was presented to establish a violation of charge # 5. Also, charge #8 fails to set forth a valid section of law. Accordingly, charges #5 and #8 are dismissed.

Lastly, the respondents each violated 6 RCNY §1-14 by failing to appear at the duly noticed hearing.

Order

CD500106806

Respondent J. Arceri Home Improvements Inc. is found guilty of charge #’s 1 through 4.

In addition, upon default, the respondent J. Arceri Home Improvements Inc. is found guilty of charge # 6 and #7 and of violating 6 RCNY Section 1-14.

Charges # 5 and #8 are hereby dismissed against respondent J. Arceri Home Improvements Inc.

Respondent J. Arceri Home Improvements Inc. is hereby Ordered to pay to the Department a TOTAL FINE of $2,400 as follows:

Charge 3: $1,000

Charge 4: $500

Charge 6: $200

Charge 7: $200

6 RCNY Section 1-14: $500

In addition, HIC License #1126603 is REVOKED EFFECTIVE IMMEDIATELY. J. Arceri Home Improvements Inc. is directed to surrender its license documents 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 in the operation of its business, pursuant to the Administrative Code Sections 20-105 and 20-106 (the “Padlock Law”).

DD500106806:

Respondent John J. Arceri is found guilty of charge #’s 1 through 4, and of violating 6 RCNY Section 1-14.

In addition, upon default, the respondent John J. Arceri is found guilty of charge #’s 6 and 7.

Respondent John J. Arceri is hereby Ordered to pay to the Department a TOTAL FINE of $2,400 as follows:

Charge 3: $1,000

Charge 4: $500

Charge 6: $200

Charge 7: $200

6 RCNY Section 1-14: $500

Charges # 5 and 7 are hereby dismissed as against respondent John J. Arceri.

In addition, HIS License #0977723 is REVOKED EFFECTIVE IMMEDIATELY. John J. Arceri is directed to surrender his license document to the Licensing Division immediately. If he continues to operate with a revoked license, 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 its business, pursuant to the Administrative Code Sections 20-105 and 20-106 (the “Padlock Law”).

CD500106806 & DD500106806:

Respondents J. Arceri Home Improvements Inc. and John J. Arceri are hereby ORDERED to pay RESTITUTION to consumer Michael Duran in the amount of $400, for which they are each jointly and severally liable.

This constitutes the Decision and Order of the Department.

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Lee Fawkes

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 the following: A check or money order for the sum of $25 payable to the Department of Consumer Affairs; and a sworn statement outlining a meritorious defense to the charges alleged in the Notice of Hearing; and a statement offering an excuse for your failure to appear on the designated hearing date. In addition, you must serve a copy of your motion to vacate, and any related documents, on the Legal Services Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

NOTICE TO CONSUMER COMPLAINANT: If you wish to APPEAL this decision, or file a MOTION FOR REHEARING, you must file your 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 (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 of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship, supported by evidence of financial hardship, including the most recent tax returns you have filed. 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.

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