NYC DEPARTMENT OF CONSUMER AFFAIRS



Linda Merone & the Department of Consumer Affairs v. New Alliance Construction Corp., Robert van Tassell, Jr., Van Tassell Enterprises, Inc. & Robert van Tassell, Sr.

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

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: NOTICE OF HEARING

LINDA MERONE

1359 63RD STREET : CD # 500087928

BROOKLYN, NY 11219 DD # 500087928

: LL # 005084080

-and- LL # 005084081

:

NYC DEPARTMENT OF CONSUMER AFFAIRS

:

Complainants,

:

-against-

:

NEW ALLIANCE CONSTRUCTION CORP. License # 1101228 (HIC)

109 WINANT PLACE :

STATEN ISLAND, NY 10309

:

ROBERT VAN TASSELL, JR. License # 1101230 (HIS)

5C GRILLE COURT :

STATEN ISLAND, NY 10309

:

VAN TASSELL ENTERPRISES, INC. License # 0833549 (HIC)

128 MEADE LOOP :

STATEN ISLAND, NY 10309

:

ROBERT VAN TASSELL, SR. License # 1067602 (HIS)

128 MEADE LOOP :

STATEN ISLAND, NY 10309

: DATE: October 20, 2006

Respondents-Licensees.

:

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A hearing was originally scheduled for June 8, 2006, at which time the following appeared: Consumer Linda Merone and her attorney, Carla A. Latty, Esq.; and, Respondents Robert van Tassell, Jr. and Robert van Tassell, Sr. The case was adjourned to provide each respective respondent the opportunity to retain legal counsel.

On August 9, 2006, the hearing in the above captioned matter was begun and was continued on September 19, 2006. Appearing on each of these dates were the following: For the Complainants: Linda Merone and Carla Latty, Esq. For Respondents van Tassel Enterprises, Inc. and Robert van Tassell, Sr.: Robert van Tassell, Sr. and Jared Anderson, Esq., of counsel to Sean O’Sullivan, Esq. Although duly notified of the time and place of the hearing, respondents New Alliance Construction Corp. and Robert van Tassell, Jr. did not appear.

The respondents are charged with violating the following:

Administrative Code of the City of New York:

1. §20-101by failing to maintain the standards of integrity, honesty and fair dealing required of licensees in that Respondent failed to complete work in accordance with written contract.

2. §20-113 by conducting activities under a name different from than that of the person or organization to whom such license was issued or the trade name stated in the application therefore.

3. §20-113 by conducting activities under more than one trade name.

4. §20-113 by failing to notify the Department of Consumer Affairs of any change of trade name at least ten days before such change becomes effective and by changing its trade name without the prior written approval of the commissioner or the commissioner’s designee.

5. §20-393(1) by materially deviating from or disregarding the plans or specifications or any terms and conditions agreed to under a home improvement contract, without written consent of the owner.

6. §20-393(1) by abandoning the job prior to completion.

7. §20-393(7) by failing to notify the Commissioner of a change in location.

8. §20-393(8) by conducting a home improvement business in any name other than the one in which the contractor is licensed.

9. §20-393(9) by willfully failing to comply with an order, demand, rule, regulation or requirement made by the Commissioner pursuant to provisions of this subchapter in that Respondent Robert allowed Respondent Tassell to solicit and sell a home improvement contract on its behalf, without a home improvement salesperson license as required by § 20-387(a).

10. §20-393(11) by failing to perform work under a home improvement contract in a skillful and competent manner.

11. Respondent Robert van Tassell, Jr. violated §20-387 by engaging in unlicensed home improvement activity.

Title 6 of the Rules of the City of New York (“6 RCNY”):

12. 6 RCNY §1-05 by failing to clearly identify the license number and by failing to clearly identify the 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.

13. 6 RCNY §1-08 by failing to notify the Department in writing of any change of address of the licensed business, the residence addresses of individual licensees, all partners of partnership licensees, or the officers and principal stockholders of corporate licensees, within 10 days of the change.

14. 6 RCNY §1-13 by failing to respond to the Department, within 20 days, in writing, about a complaint sent to the licensee by the Department.

15. 6 RCNY §1-13 by failing to respond to subsequent communications from the Department concerning the complaint within 10 days after receiving a communication.

16. 6 RCNY §2-221(a)(1) by failing to include in the contract the contractor's name and license number and the salesperson's name and license number.

17. 6 RCNY §2-221(a)(2) by failing to include in the contract the approximate or estimated dates on which the work will begin and be substantially completed.

18. 6 RCNY §2-221(a)(2) by failing to include in the contract any contingencies that would materially change the approximate or estimated completion date.

19. 6 RCNY §2-221(a)(2) by failing to state in the contract whether a definite completion date is of the essence.

20. 6 RCNY §2-221(a)(3) by failing to include in the contract a description of the materials to be provided to the owner, including make, model number or any other identifying information, and the agreed upon consideration for the work and materials.

21. 6 RCNY §2-221(a)(4) by failing to include in the contract a notice to the owner that the contractor 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.

22. 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 purposes of the Contract.

23. 6 RCNY §2-221(a)(6) by failing, where the contract provides for one or more progress payments to be paid to the home improvement contractor by the owner before substantial completion of the work, to provide a schedule of progress payments showing the amount of each payment as a sum in dollars and cents and specifically identifying the state of completion of the work or services to be performed, including any materials to be supplied before each such progress payment is due.

24. 6 RCNY §2-221(a)(6) by failing to provide for progress payments which bear a reasonable relationship to the amount of work to be performed, materials to be purchased, or expenses for which the contractor would be obligated at the time of payment.

25. 6 RCNY §2-221(a)(7) by failing to clearly state an advertised representation regarding a charge, guaranty, or warranty, and to make such representation a part of the home improvement contract.

26. 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

27. 6 RCNY §2-221(a)(9) by failing to include in the contract a clause wherein the contractor will obtain all necessary permits.

28. 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.

29. 6 RCNY §2-221(b) by failing to provide a separate Notice of Cancellation to the owner.

30. Respondent Robert van Tassell, Jr. violated 6 RCNY §2-221(m) by failing to notify the Department of Consumer Affairs within 48 hours of employment.

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

Findings of Fact

In or about early January 2002, the consumer met with Robert van Tassell, Jr. (hereinafter “Junior”) about performing home improvements to her home situated at 1359 63rd Road, Brooklyn, NY. At that time, Junior advised that he would be working under his father’s company, Van Tassell Enterprises, Inc. (hereinafter “Enterprises”).

On January 28, 2002, Junior presented the consumer with a contract bearing the letterhead “New Alliance Construction Corp.” (hereinafter “NAC”), whereby NAC agreed to perform said home improvements for $138,000. Junior was the only salesperson involved in the sale of this contract. The work included, but was not limited to, adding a third story to the house, decreasing the size of the detached garage (pursuant to the plans drafted by her architect, Strange, Haskopoulos & Vella) and installing new windows throughout the house. No license numbers were set forth on the contract. The consumer understood that she was only dealing with Junior and NAC, and not Junior’s father, Robert van Tassell, Sr. (hereinafter “Senior”) or Enterprises.

At the times Junior solicited and sold the aforesaid contract, neither he nor NAC were licensed by the Department of Consumer Affairs. They did not become licensed until April 1, 2002. Junior is listed as president of NAC in Department records.

After entering into the aforesaid contract, the consumer and Junior orally agreed to modify it to add the following work: (1) construction of a 3rd floor terrace for $15,000; and, (2) the application of a new under layer of sheetrock to the exterior of the house, upon which to apply stucco for $10,000. These additions brought the total contract price to $163,000. The consumer and Junior also orally agreed that work would begin in early June 2002. On February 29, 2002, the consumer made an initial payment to NAC in the amount of $6,600.

NAC did not begin work until late June 2002. The consumer never consented in writing to the delay in work commencement. Starting in late June, NAC’s laborers worked, albeit sporadically. Junior neither performed any work nor supervised the laborers. From February 29, 2002 through November 22, 2002, the consumer made payments to NAC totaling $166,975.87, thereby overpaying NAC by $3,975.87.

In the beginning of January 2003, NAC’s workers suddenly stopped coming, leaving the job unfinished. The consumer never consented in writing to the work stoppage. Much of the work that NAC did perform was unsatisfactory. Despite the consumer’s numerous requests that NAC correct and finish the work, and Junior’s many promises to do so, no one from NAC ever returned. The defective and/or unfinished work is as follows:

• NAC moved the pipes in the first floor kitchen and failed to properly insulate them, so that they freeze.

• Some of the sheetrock on the second floor and in the third floor stairwell has bumps and looks wavy.

• The air conditioning system was never installed.

• The electrical work was never completed. The electrical panel was taken apart, wires were left hanging and no sign-off was obtained.

• The garage roof leaked.

• Leaders and gutters were never installed on the house or the garage.

• Second floor bathroom sink is the wrong color and the bathtub finish is coming off.

• The chimney leaks in the third floor bathroom.

• Water leaks from the third-floor terrace into the second floor living room and hallway.

• The moldings in the second floor living room and kitchen do not match.

• The new window in the second floor living room window cannot be tilted in or opened and closed easily.

• The stucco is failing in numerous areas around the house.

• NAC covered the pre-existing exterior light boxes with stucco.

• NAC demolished the exterior front stoop and never rebuilt it.

• NAC did not remove one of the baseboard heaters on the third floor.

• NAC left a gaping hole on the second floor.

• NAC did not install under-cabinet lighting in the second floor kitchen.

• NAC did not paint the second and third floors.

• The intercom system did not work.

In addition, NAC did not properly dispose of construction waste, causing the issuance of two violations by the Department of Sanitation. Pursuant thereto, the consumer paid a total of $100 to the Environmental Control Board.

The consumer paid $37,308.84 to correct and complete the work, as follows:

Captain Contracting: $26,250.00

Central Tile Imports, Inc.: $ 3,861.74

Home Depot: $ 1,548.17

K.C.M. Plumbing & Heating Corp.: $ 1,600.00

Roto-Rooter Plumbing & Drain Service: $ 412.70

Handyman Home Services: $ 3,200.00

Dependable Industrial Supply Co., Inc. $ 136.23

The Chiu’s (Intercom Repair) $ 300.00

At no time did the consumer have any business dealings with respondents Enterprises or Senior.

NAC’s contract failed to contain all of the language and information required by 6 RCNY Sections 1-05, 2-221(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9) and (a)(10). However, Junior, on behalf of NAC, did provide the consumer with a separate Notice of Cancellation form.

Neither Enterprises nor Senior ever authorized Junior to use their respective license numbers or solicit and/or sell a home improvement contract on behalf of Enterprises. Neither Enterprises nor Senior ever operated out of any address other than that set forth on their respective licenses. Senior and Enterprises responded to Department communications regarding the instant complaint within 20 days.

Opinion

The credible evidence establishes that neither Enterprises nor Senior had anything to do with the subject home improvement contract between the consumer and NAC. The consumer acknowledged at the hearing that she had no dealings whatsoever with Enterprises or Senior, and that it was always her understanding that she was dealing only with Junior and NAC. Furthermore, respondent Senior credibly testified that he and Junior have been estranged for quite some time, and that neither he nor anyone else on behalf of Enterprises allowed him to engage in salesperson activity without a license, or permitted him to use Enterprises’ license number or otherwise solicit and sell home improvement contracts on Enterprises’ behalf. Accordingly, in light of all of the foregoing, charges numbered 5, 6, 7, 9, 10, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 shall be dismissed as against respondents Enterprises and Senior.

No evidence was presented to support the allegations that the respondents violated Administrative Code Sections 20-113, 20-393(7) and 20-393(8), and 6 RCNY Sections 1-08 and 1-13. Accordingly, charges numbered 2, 3, 4, 7, 8, 13, 14 and 15 shall be dismissed as against all respondents. Furthermore, no evidence was presented to establish that respondent Junior violated 6 RCNY 2-221(m). Accordingly, charge #30 shall be dismissed as against him.

However, the credible evidence also establishes that respondent NAC deviated from the plans and specifications of the subject home improvement contract without the consumer’s written consent by failing to commence work at the agreed-upon time and subsequently abandoning the job prior to completion. The evidence further establishes that much of the work that NAC performed was substandard and had to be redone. Accordingly, charges numbered 5, 6 and 10 shall be sustained as against NAC.

The credible evidence further establishes that the written home improvement contract failed to contain the language and information required by 6 RCNY Sections 1-05, 2-221(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9) and (a)(10). Accordingly, charges numbered 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 shall be sustained as against respondents Junior and NAC. Furthermore, the evidence establishes that Junior engaged in unlicensed home improvement salesperson activity when soliciting and contracting with the consumer. Accordingly, charge #11 shall be sustained as against Junior. However, the evidence also establishes that Junior did provide the consumer with a separate Notice of Cancellation Form. Accordingly, charge #29 shall be dismissed as against respondents Junior and NAC.

The credible evidence further establishes that the consumer is entitled to restitution in the amount of $41,384.71, computed as follows:

$37,308.84 (Cost to correct and complete the work)

$ 3,975.87 (Amount consumer overpaid NAC)

$ 100.00 (Fines paid to the Environmental Control Board)

$41,384.71

Lastly, in light of all of the foregoing and of their failure to appear at the duly noticed hearings, it is determined that respondents NAC and Junior fail to maintain the standards of integrity, honesty and fair dealing required of licensees, in violation of Administrative Code Section 20-101. Accordingly, charge #1 shall be sustained as against respondents NAC and Junior.

Order

On CD5-87928 against New Alliance Construction Corp.

Respondent New Alliance Construction Corp. is found guilty of charges numbered 1, 5, 6, 10, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28, and is hereby

Ordered to pay to the Department a TOTAL FINE of $3,750, as follows:

Charges #5 & #6: $1,000

Charge #10: 500

Charge #12: 200

Charge #16: 200

Charges #17, 18 & 19: 200

Charge #20: 200

Charge #21: 200

Charge #22: 200

Charges #23 & #24: 200

Charge #25: 200

Charge #26: 200

Charge #27: 200

Charge #28: 250; and, it is hereby

ORDERED that New Alliance Construction Corp. pay restitution to consumer Linda Merone in the amount of $41,384.71, as hereinafter set forth.

In addition, HIC License #1101228 is REVOKED, EFFECTIVE IMMEDIATELY. New Alliance Construction Corp. is hereby 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, 4, 7, 8, 13, 14, 15, 29 and 30 are hereby dismissed as against New Alliance Construction Corp.[1]

On DD5-97616 against Robert van Tassell, Jr.

Respondent Robert van Tassell, Jr. is found guilty of charges numbered 1, 11, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28, and is hereby

Ordered to pay to the Department a TOTAL FINE of $3,350, as follows:

Charge #11: 1,100

Charge #12: 200

Charge #16: 200

Charges #17, 18 & 19: 200

Charge #20: 200

Charge #21: 200

Charge #22: 200

Charges #23 & #24: 200

Charge #25: 200

Charge #26: 200

Charge #27: 200

Charge #28: 250

In addition, HIS License #1101230 is REVOKED, EFFECTIVE IMMEDIATELY. Robert van Tassell, Jr. is hereby 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, 4, 7, 8, 13, 14, 15, 29 and 30 are hereby dismissed as against Robert van Tassell, Jr.[2]

On LL 5084080 against Van Tassell Enterprises, Inc.

Charges numbered 1 through 30 are hereby dismissed as against Van Tassell Enterprises, Inc.

On LL 5084081 against Robert van Tassell, Sr.

Charges numbered 1 through 30 are hereby dismissed as against Robert van Tassell, Sr.

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: Carla A. Latty, Esq.

DC 37 Municipal Employees Legal Services

125 Barclay Street

New York, NY 10007

Sean O’Sullivan, Esq.

Jared Anderson, Esq.

84 New Dorp Plaza

Staten Island, NY 10306

NOTICE TO RESPONDENT(S) NEW ALLIANCE CONSTRUCTION CORP. and ROBERT VAN TASSELL, JR.: 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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[1] Charge #9 is alleged only against respondent Senior. Charge #11 is alleged only against respondent Junior.

[2] Charge #9 is alleged only against respondent Senior.

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