PL H



Rafael Thomson and the Department of Consumer Affairs v. Ficalora Brothers Construction Corp. & Carlo Ficalora & Robert Stanton

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

| |DECISION AND ORDER |

|RAFAEL THOMSON | |

| |Violation No.: CD5-80414 |

|and |DD5-80414 |

| |EE5-80414 |

|THE DEPARTMENT OF CONSUMER AFFAIRS, | |

| |License Nos.: 1081378 (HIC) |

|Complainants, |1081385 (HIS) |

| |0711540 (HIS) |

|-against- | |

| |Date: July 5, 2005 |

|FICALORA BROTHERS CONSTRUCTION CORP. & carlo ficalora | |

|3 Park Street | |

|Staten Island, NY 10306 | |

|& | |

|robert stanton | |

|185 West Park Avenue, Room 508 | |

|Long Beach, NY 11561, | |

| | |

|Respondents/Licensees. | |

A settlement conference was held on March 2, 2004. Appearing for the consumer complainant was his authorized representative, David Thomson. Appearing for respondents Carlo Ficalora, Ficalora Brothers Construction Corp. and Robert Stanton were Carlo Ficalora and Howard Sklar, Esq. On that date, the consumer and the respondents entered into a Stipulation of Settlement whereby the respondents agreed to pay the consumer $4,000. However, the respondents defaulted, having paid the consumer only $1,999.99. Consequently, the case was restored to the hearing calendar.

A hearing in the above-captioned matter was commenced on July 14, 2004. Appearing for the consumer was David Thomson. Appearing for all respondents was Jonathan Silverstein, Esq., an associate of Howard Sklar, Esq. The hearing was continued on October 18, 2004 and completed on May 24, 2005, with Mr. Thomson representing the consumer and Mr. Silverstein representing the respondents. A final hearing date was scheduled for June 14, 2005 to afford respondents Robert Stanton and Carlo Ficalora the opportunity to testify. However, Mr. Silverstein sent written confirmation on June 3, 2005 that Mr. Stanton did not wish to testify and that Mr. Sklar’s office no longer represented Mr. Ficalora or Ficalora Brothers Construction Corp. Accordingly, the case is hereby determined upon the record made as of May 24, 2005.

The respondents are charged with violating the following:

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

2. New York City Administrative Code §20-113 for operating under the trade names “Elegance Building & Contractors” and “City Wide Home Inspections, Inc.”, neither of which was on record with the Department nor approved by the Commissioner.

3. New York City Administrative Code §20-390(4) for not notifying the Department of the employment of Robert Stanton.

4. Title 6 of the Rules of the City of New York (“6 RCNY”) §2-221(b) for failing to provide the Complainant with a separate Notice of Cancellation form.

5. New York City Administrative Code §20-393(11) for failing to perform work in a skillful and competent manner.

6. Title 6 of the Rules of the City of New York (“6 RCNY”) §2-221(a)(8) for failing to include a clause in a home improvement contract wherein the contractor agreed to furnish the buyer with a certificate of Workers’ Compensation Insurance prior to the commencement of work pursuant to the contract.

7. Title 6 of the Rules of the City of New York (“6 RCNY”) §2-221(b) for failing to provide the consumer with a separate Notice of Cancellation form.

8. Title 6 of the Rules of the City of New York (“6 RCNY”) §2-221(m) for failing to notify the Department by written confirmation from Ficalora Brothers Construction Corp., within 48 hours of employment.

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

Findings of Fact

David Thomson (hereinafter “David”) is the son and authorized representative of Raphael Thomson, the owner of a two-family residential house situated at 949 East 219th Street, Bronx, NY. David has power of attorney for his father. On October 14, 2002, David and Ficalora Brothers Construction Corp. (hereinafter “Ficalora Brothers”) entered into a written contract whereby Ficalora Brothers agreed to perform home improvements to the house for $32,500. Respondent Robert Stanton (hereinafter “Stanton”) prepared the contract on letterhead that read “Elegance Building & Contractors – A division of City Wide Home Inspections, Inc. & Ficalora Brothers Construction Corp.” (hereinafter “Ficalora Brothers”). The contract also set forth Ficalora Brothers’ Home Improvement Contractor’s License #1081378. Stanton signed as salesperson, License #711540. Respondent Carlo Ficalora neither acted as salesperson nor did he supervise or perform any of the work under the said contract.

Neither Stanton nor anyone on behalf of Ficalora Brothers provided the consumer with a separate Notice of Cancellation form. In addition, the aforementioned contract failed to include the Workers’ Compensation clause required by 6 RCNY Section 2-221(a)(8).

In or about the end of October 2002, David and Ficalora Brothers amended the contract. Stanton signed this amendment as “president” of City Wide Home Inspections, Inc., listing 3 Park Street Staten Island, NY (Ficalora’s address), AND listing Ficalora Brothers’ HIC license number (#1081378). Pursuant to the original contract and the amendment, Ficalora Brothers was to perform the following home improvement contracting services in the downstairs apartment for the price of $32,500:

• Scrape, repair, skim coat and paint all walls and ceilings in the downstairs apartment, including the two bedrooms, living room and in the kitchen and hallway;

• Sand and finish all hardwood floors;

• Procure and install eight new double-hung windows;

• Replace a closet door in the front bedroom;

• Remove carpeting in the back bedroom, sand and refinish the wood floor and build a new closet;

• Gut out the bathroom and completely renovate it, including a new tub with shower, sink, commode (American Standard), medicine cabinet, wonder board, ceramic tile, Delta faucets and replacing plumbing and heating pipes, if required;

• In the kitchen, remove the drop ceiling and wall, procure and install a new stainless steel sink, counters, cabinets, stove (with exhaust), lighting, a new side door, install a new linoleum tile floor and relocate the radiator;

• Repair and refinish the French doors, including replacement of the broken glass and doorknobs and painting;

• Supply and install five new doors;

• Install a new railing on the back patio stairs; and,

• To supply a dumpster and remove all construction debris.

According to the amendment, which was signed by David and Stanton, work was to commence on November 9, 2002 and was to be completed on December 9, 2002.

Work began on or about November 9, 2002. Ficalora Brothers’ worker, Wesley Rozuk, and two other workers worked on and off until the end of December 2002. Neither Stanton nor Carlo Ficalora performed any work (although Stanton did cart some debris away). As of early January 2003, David paid $22,500 as follows: $21,000 in checks to “City Wide Home Inspections, Inc.” and $1,500 in cash to Wesley Rozuk.

On January 21, 2003, the workers stopped working. Stanton told David that he had fired Wesley Rozuk because Rozuk was allegedly lying to other customers and was stealing. Furthermore, he told David that the contracting company had no money to finish the job, and recommended another contractor. When David insisted that Ficalora Brothers and Stanton complete the work, Stanton refused, saying that his company was “a dead corporation” and that he was personally not responsible. Thereafter, the respondents never returned to finish the job.

As of the date the work stopped, the following was either not performed or performed defectively:

• Two doors were not supplied and installed;

• The bathroom was gutted only. The fixtures were not supplied or installed. (The respondents did procure a bathtub that was unusable because it was too small). No other work was done in the bathroom.

• Although eight windows were supplied and installed, one window had a broken pane and was not repaired/replaced;

• In the kitchen, the respondent never supplied the sink, stove, cabinets, countertops or lighting. The respondent moved the radiator out of the house and disposed of it, instead of relocating it in the house. The respondent obtained the linoleum tile, but only laid 1/3 of it;

• None of the wooden floors were sanded and refinished;

• The moldings in the bedrooms were not repaired.

• No work was done to the French doors;

• A dumpster was not provided and the debris was not carted away.

The cost to correct the work and complete the job is $23,567.58, as follows:

$11, 205.00 to Howard Molen HFM Company, Inc. pursuant to contract dated 9/15/03 for to complete bathroom, kitchen flooring*, install light fixtures in kitchen and bathrooms*, fix capping, reinstall side door, install door knobs* (* The consumer supplied these materials).

$ 850.00 To Howard Molen HFM Company, Inc. pursuant to contract dated 12/30/03 to install a toilet pipe, paint the kitchen, capping bathroom windows and replace moldings.

$ 4,781.84 to Liberty Painting and Wallpaper, Inc. pursuant to contract dated 7/19/04 to install kitchen cabinets*, kitchen sink/plumbing, stove*, replace broken window pane, replace broken glass in French door, fix moldings and paint rooms.*

(* The consumer supplied these materials).

$ 800.00 to Victor’s Removal & Delivery on 7/25/03 to remove debris.

$ 519.09 to Sears on 7/18/04 for purchase and delivery of a Sears Kenmore gas range.

$ 143.38 to Bergen Tile of Brooklyn on 9/13/03 for additional kitchen floor tile.

$ 2,353.17 to IKEA 5/22/04 for kitchen cabinets.

$ 473.61 to North Shore Plumbing on 9/15/03 for toilet, sink and bathtub fixtures.

$ 225.17 to Bergen Tile of Brooklyn on 9/13/03 for bathroom tile.

$ 371.32 to Home Depot, from 9/14/03 to 10/20/03, for bathroom accessories, including but not limited to a vanity, a toilet seat and medicine cabinet.

$ 1,845.00 Estimate of Inka Flooring, dated 8/5/04, to refinish the floors.

Opinion

The credible evidence establishes the following:

• that the consumer and respondent Ficalora Brothers (d/b/a City Wide Home Inspections, Inc.) entered into a home improvement contract for $32,500;

• that the consumer paid a total of $22,500 to Ficalora Brothers and to its worker, Walter Rozuk;

• that respondent Stanton was the salesperson on the job and the supervisor of the work;

• that Ficalora Brothers failed to complete the work, that a lot of the work it did perform needed to be redone, and that it never refunded any of the money to the consumer.

In light of the foregoing, it is determined that both Ficalora Brothers and Stanton deviated from the terms and specifications of the contract without the consumer’s written consent and failed to perform work in a skillful and competent manner, in violation of Administrative Code Sections 20-393(1) and 20-393(11). The evidence further establishes that the subject contract failed to include the required Workers’ Compensation clause, and that the consumer was never provided with a separate Notice of Cancellation form, in violation of 6 RCNY Sections 2-221(a)(8) and 2-221(b). Accordingly, charges 4, 5, 6 and 7 must be sustained against Ficalora Brothers and Stanton.

The evidence further establishes that the consumer is entitled to restitution from respondents Ficalora Brothers and Stanton in the amount of $11,567.58, computed as follows:

$23,567.58 (cost to correct and complete the work)

- $ 2,000.00 (amount Stanton previously paid in attempt to settle)

- $10,000.00 (balance of unpaid contract price)

$11,567.58

By violating the aforementioned sections of law, and by failing to complete the job and failing to refund the consumer’s money, it is determined that Ficalora Brothers and Stanton failed to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of Administrative Code Section 20-101. Accordingly, charge #1 must be sustained against Ficalora Brothers and Stanton.

The complainants failed to present any evidence that Ficalora Brothers or Stanton violated Administrative Code Sections 20-113 or 20-390(4) or 6 RCNY Section 2-221(m). Accordingly, charges numbered 2, 3 and 8 must be dismissed as against Ficalora Brothers and Stanton.

The consumer acknowledged that respondent Carlo Ficalora neither acted as salesperson nor performed or supervised any work under the subject contract. Accordingly, charges numbered 1, 4, 5, 6 and 7 must be dismissed as against him. Furthermore, the complainants presented no evidence that Mr. Ficalora violated Administrative Code Sections 20-113 or 20-390(4) or 6 RCNY Section 2-221(m). Accordingly, charged numbered 2, 3 and 8 must be dismissed as against him as well.

Order

On CD5-84384

RESPONDENT FICALORA BORTHERS CONSTRUCTION CORP. is found guilty of charges numbered 1, 4, 5, 6 and 7 and is hereby

Ordered to pay to the Department a TOTAL FINE of $2,050, as follows:

Charge 4: $1,000

Charge 5: $ 500

Charge 6: $ 200

Charge 7: $ 350

In addition, HIC License #1081378 is REVOKED, EFFECTIVE IMMEDIATELY. FICALORA BROTHERS CONSTRUCTION CORP. is directed to surrender its 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 in the operation of its business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the “Padlock Law”).

Charges numbered 2, 3 and 8 are dismissed as against FICALORA BROTHERS CONSTRUCTION CORP.

On DD5-84384

RESPONDENT ROBERT STANTON is found guilty of charges numbered 1, 4, 5, 6 and 7, and is hereby

Ordered to pay to the Department a TOTAL FINE of $2,050, as follows:

Charge 4: $1,000

Charge 5: $ 500

Charge 6: $ 200

Charge 7: $ 350

In addition, HIS License #0711540 is REVOKED, EFFECTIVE IMMEDIATELY. ROBERT STANTON 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 his business, pursuant to the Administrative Code of the City of New York Sections 20-105 and 20-106 (the “Padlock Law”).

Charges numbered 2, 3 and 8 are dismissed as against ROBERT STANTON.

On CD5-80414 & DD5-80414

Respondents FICALORA BROTHERS CONSTRUCTION CORP. and ROBERT STANTON are hereby ORDERED to pay Restitution to the consumer in the amount of $11,567.58, for which they are each jointly and severally liable.

On EE5-80414

Charges numbered 1 through 8 are dismissed as against Carlo Ficalora.

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

cc: Robert Stanton, 3680 Max Place, Apt. 105, Boynton Beach, Florida 33436- 2087

Howard M. Sklar, Esq., One Old Country Road, Carle Place, NY 11514

David Thomson, 70 Nevins Street, Apt. #3, New York, NY 11217

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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