CD5-87192 & DD5-87192

Page 1

Michael Smith & NYC Department of Consumer Affairs v. Mizzi & Brancaccio & Robert Brancaccio

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

------X
MICHAEL SMITH
&
NYC DEPARTMENT OF CONSUMER AFFAIRS,
Complainants,
– against –
MIZZI & BRANCACCIO[1] and ROBERT BRANCACCIO,
Respondents.
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SUPERCEDING DECISION AND ORDER

Violation Nos.: CD5-87192 &
DD5-87192
License Nos.: 0698321 (HIC)
0719245 (HIS)
Respondents’ Address:
206-03 48TH Avenue
Bayside, NY 11364
Date: September 12, 2008

A hearing was begun on May 4, 2005 and was continued on May 23, 2005, July 12, 2005, September 15, 2005, November 3, 2005, February 16, 2006, August 17, 2006, February 8, 2007, April 26, 2007, June 7, 2007 and August 2, 2007. The record was left open until September 14, 2007 for the respondent to submit any opposition to videotape evidence offered by the consumer as well as for the opportunity for either side to submit post-hearing briefs.The matter was remanded for an additional hearing pursuant to the Appeal Determination dated March 20, 2008, and said additional hearing was held on August 7, 2008.[2]

Appearances:

May 6, 2005:For the complainants: Michael Smith, Janet Smith, Albert Gaudelli, Esq. and Patricia Colella, paralegal. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

May 23, 2005:For the complainants: Michael Smith, appearing pro se, and Janet Smith. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

July 12, 2005:For the complainants: Michael Smith, Janet Smith, William Barish, Esq. and Dr. James Yarmus, engineer. For the respondents: Robert Brancaccio, Joseph Asselta, Esq. and Richard Berkenfeld, engineer.

September 15, 2005:For the complainants: Michael Smith, Janet Smith, William Barish, Esq. and Andrew Yarmus, engineer. For the respondents: Robert Brancaccio, Joseph Asselta, Esq. and Richard Berkenfeld, engineer.

November 3, 2005:For the complainants: Janet Smith, William Barish, Esq. and Andrew Yarmus, engineer. For the respondents: Robert Brancaccio, Joseph Asselta, Esq. and Richard Berkenfeld, engineer.

February 16, 2006:For the complainants: Michael Smith, Janet Smith and William Barish, Esq. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

August 17, 2006:For the complainants: Michael Smith, Janet Smith and William Barish, Esq. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

February 8, 2007:For the complainants: Michael Smith, Janet Smith and William Barish, Esq. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

April 26, 2007:For the complainants: Michael Smith, Janet Smith, William Barish, Esq. and Sean Glynn, engineer. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

June 7, 2007[3]:For the complainants: Michael Smith, Janet Smith, and William J. Fay, Esq. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

August 2, 2007:For the complainants: Michael Smith, appearing pro se, and Janet Smith. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

August 7, 2008:For the complainants: Michael Smith, appearing pro se, and Janet Smith. For the respondents: Robert Brancaccio and Joseph Asselta, Esq.

Procedural History

The respondent previously commenced an action against the consumer which is currently pending in Supreme Court of the State of New York, QueensCounty: Mizzi and Brancaccio Corp. v. Michael Smith and Eileen Murphy a/k/a Eileen Smith, Index. No.24752-04. The consumer originally filed a counterclaim against the respondent for breach of contract, but chose to withdraw itand continue with the instant administrative proceeding.

During the pendency of this hearing, the consumer indicated that he wished to add additional claims to those enumerated in the Notice of Hearing. He was granted opportunities to do so during the pendency of the hearing.[4] However, on November 3, 2005, his then-attorney, William Barish, stated on the record that the consumer chose not to amend, but would seek restitution in the form of his full cost of completion, based upon the violations as alleged in the original Notice of Hearing.[5] The respondents, by attorney Joseph Asselta, objected to any claim for restitution, claiming that the Notice of Hearing does not make specific reference to it. However, it was determined at that time that the remedy of restitution was reasonably contemplated by charges numbered 1 through 7.[6]

Charge #1, which alleges that the respondents violated Administrative Code §20-101 for “failing to follow the architectural plans leading to unsatisfactory and incomplete work”, does not in and of itself specifically set forth and identify those alleged instances of deviation from the plans or defective work. The only specific instances are set forth and alleged in charges numbered 2 through 7. Although the consumer was permitted to present testimony and evidence regarding claims other than those identified in the Notice of Hearing,[7] it is determined that the respondents were not givensufficient notice of those claims, given the consumer’s failure to amend the Notice of Hearing. Accordingly, that testimony and other evidence concerning those additional claims shall not be considered, and the determination of the issues in this case shall be limited to those claims alleged in the original Notice of Hearing.[8]

On August 2, 2007, the consumer, appearing pro se, moved to amend the Notice of Hearing to add additional claims. The respondents’ objection to any such amendments was sustained and the motion denied, given that the hearing in this matter has been pending for over two years and that the consumer declined the previous opportunities to amend.[9]

*************

The Notice of Hearing charges the respondents with violating the following:

  1. Administrative Code of the City of New York (hereinafter “the Code”) §20-101by failing to maintain standards of integrity, honesty, and fair dealing for failing to follow the architectural plans leading to unsatisfactory and incomplete work.

2.§20-393(1) of the Code for failing to waterproof all exposed (exterior) concrete with “Thoroseal” heavy cement base coating as the contract obliged them to.

3.§20-393(1) of the Code for failing to provide non-corrosive metal termite shields at all foundations as the contract obliged them to.

4.§20-393(1) of the Code for failing to properly use “teco” brackets as the contract obliged them to.

5.§20-393(1) of the Code for failing to properly use plywood shims as the contract obliged them to.

6.§20-393(1) of the Code for failing to properly install/locate the steel beams as the contract obliged them to do.

7.§20-393(1) of the Code for using “Expansion Joints” when the plans did not call for expansion joints as the contract obliged them to.

8. Title 6 of the Rules of the City of New York (hereinafter “6 RCNY)§2-221(a)(1) for failing to include the home improvement salesperson's license number on the contract.

9.6 RCNY §2-221(a)(2) for failing to include in the contract a clause stating the approximate dates, or estimated dates, when the work will begin and be substantially completed.

10.6 RCNY §2-221(a)(8) for failing to include a clause in the contract whereby Respondent agreed to furnish Complainant with a certificate of Workers’ Compensation Insurance prior to the commencement of the work.

11.6 RCNY §2-221(a)(10) for failing to furnish to the buyer at the time he signed the home improvement contract a separate completed form in duplicate captioned “Notice of Cancellation”.

Findings of Fact

In 2003, the consumer sought to construct a rear basement and first-floor extension to his house situated at 149-34 10th Avenue, Whitestone, NY. The proposed extension was to consist of a new family room, bedroom and full bathroom, as well as an extension of the rear portion of the pre-existing basement. He hired architect John J. Viscardi (hereinafter “Viscardi”) to draft the plans, which were filed with the Department of Buildings and approved. Thereafter, the consumer consulted with respondent Mizzi & Brancaccio Corp. (hereinafter “M&B”) to perform the construction. On October 20, 2003, the consumer and M&B entered into a written contract whereby M&Bagreed to build said extension as per said approved plans, for $145,000.Respondent Robert Brancaccio (hereinafter “Brancaccio”) was the salesperson and supervised the work. On March 17, 2004, M&B issued a work change order expanding the scope of the work to include, among other items, additional windows and stucco.

M&B began work in or about January 2004 and continued to work until in or about late April 2004. At that time, the consumer instructed M&B to stop work because of his concerns regarding water infiltration into the new portion of the basement and perceived irregularities and deficiencies in the quality of theother work M&B had performed. By this time, the consumer had paid M&B a total of $104,000, and the work M&B had performed included the excavation of the rear yard to make way for the foundation of the extension, the pouring of the foundation and the slab, including expansion joints, the framing of the first floor rear extension, including the installation of a steel support beam in the new basement extension, the installation of plywood sheathing as well as the installation of a plywood sub-roof, with tar paper. M&B, however, did not apply Thoroseal to all exposed exterior surfaces of the new foundation, as required by the plans, but applied “Watchdog”, a tar-based waterproofing medium instead. The consumer did not consent, either orally or in writing, to the substitution of this alternative waterproofing medium. The respondents never provided the consumer with the warranty information for the Watchdog waterproofing because, by then, they were in a dispute over the quality of the work performed and money allegedly owing to M&B.

As of the time of M&B’s suspension, it had not fully nailed all the teco brackets, and had partially cut one teco bracket in order to accommodate a bolt that affixedone of the joists to the main support beam. M&B had also installed fourplywood shims to raise four of the floor joists in the extension to be level with those of the original house, which is approximately one hundred years old.[10] In addition, M&B had installed expansion joints in the concrete slab. In addition, the termite shield it had installed was improperly bent upwards on the exterior side of the extension and failed to fully extend over the foundation wall and into the basement interior.

According to the plans, looking from the front of the house towards the rear, the new steel support beam was to span the length of the new basement extension, beginning from the new rear foundation wall and extending up to the original rear foundation wall of the pre-existing basement,on top of which it was to rest. Further, the plans show that the said beam was to be placed 13 feet from the new left foundation wall of the basement extension, and 12 feet 11 inches from the new right foundation wall of the basement extension. Immediately to the right of where the beam was to rest on the original rear foundation wall, was an open Bilco doorway. Although this doorway was ultimately to be sealed with load bearing concrete block and another doorway constructed in another location, M&B had left it open in order to move in its workers and construction materials. Consequently, when M&B installed the steel beam, the width of it rested partially on the original foundation wall, and partially over the open doorway. To give the beam additional support until the doorway could be sealed with load bearing concrete block, M&B installed a temporary steel pipe column.

The consumer then hired Heimer Engineering, P.C. (hereinafter “Heimer”), which conducted an inspection on April 29, 2004 and issued a report dated May 24, 2004. Included in the Heimer report were observations that only tar, andnot Thoroseal, was appliedto the exposed exterior foundation walls, that some teco brackets were not fully nailed, that some teco brackets had been cut, that no termite shields were installed under the sill, that the main steel girder rested on approximately four inches of steel shims, and that plywood was improperly used as shims over the sill plates as there were gaps between the foundation walls and the floor joists above. The Heimer report did not mention anything about the aforementioned temporary support column.

On June 9, 2004, the Department of Buildings (hereinafter “DOB”) issued Notice of Violation #34422645Z, charging that the work performed did not conform to the approved plans, which was eventually dismissed.[11] On June 10, 2004, the respondents’ then-attorney, Peter C. Cotelidis (“Cotelidis”), advised the consumer’s then-attorney, Sol Kodsi, (hereinafter “Kodsi”), by letter of their willingness to return to the work site and resume the job to completion. In addition, that letter advised that, although the respondents believed that the application of plywood on top of the sill plate was acceptable practice and structurally sound, they were willing to block the area between the top of the foundation wall and the bottom of the floor beams with 2” pressure-treated wood beams, as well as to re-excavate around the new foundation and waterproof those areas susceptible to leaks.[12]

In response to the issuance of the Notice of Violation, Viscardi drafted revised plans, dated June 22, 2004, and filed them with the Department of Buildings, showing the temporary support column and other “as built” features. By letter dated July 2, 2004, Viscardi advised the consumer that he had drafted the revised plans, and sent them on to the consumer for his approval. On July 7, 2004, the consumer sent a letter to DOB Inspector Donald O’Conner, claiming that Viscardi falsely certified in the revised plans that the support beam rested completely on top of the existing foundation wall when it rested on only about 5” of that wall.

By letter datedJuly 28, 2004, the consumer’s next attorney, Albert A. Gaudelli (hereinafter “Gaudelli”), advised Cotelidis that the consumer requested that the respondents address the following:

  • That a foundation of load bearing concrete block be erected to support the 8” of steel beam, as per the plans;
  • That all plywood leveling plates be removed from the sill and replaced with pressure treated wood;
  • That the expansion joints in the new concrete slab be removed;
  • That the tar be removed from the foundation and the waterproofing material required by the plans be applied.
  • That the deck posts are splitting and appear not to be plumb;
  • That the installation of 2x6 studs parallel to the 2x4 studs will create an “extrusion” from the existent window frames, which must be cured.

Gaudelli also advised that the consumer was prepared to meet with the respondents at the job site to discuss the aforesaid issues, but only upon the condition that a stenographic record of that meeting be made. Cotelidis, by letter dated July 30, 2004, responded that he and the respondents were willing to meet, but only on the condition that Viscardibe present and that no record be made.[13]However, the consumer rejected this proposal[14]and subsequently demanded that the respondents provide, in writing, their intentions regarding the consumer’s aforementioned issues of concern and that the respondents post a performance and payment bond in the amount of $145,000.[15] While the respondents maintained that they were under no obligation to do so, they agreed to apply for the bond as long as the consumer paid for it. They further reiterated that they were “ready, willing, able and anxious to resume the work and to complete the project.”[16] Subsequently, on October 1, 2004, Cotelidis advised Gaudelli by letter of same date that although the respondents endeavored to furnish the performance bond, their bonding agent was unable to secure the bond “ostensibly due to the fact that there is a pending dispute between the parties.” He then reiterated that the respondents were “still ready, willing and able to resume the work on this project to its ultimate completion.”[17]

On October 22, 2004, the respondents contacted the consumer to arrange for a resumption of work at the job site, but were denied access.[18] Gaudelli then sent Cotelidis written notification that the respondents were in breach of contract and that the consumer intends “to hold Mizzi & Brancaccio responsible for the cost of all corrective measures, and any and all expenses and damages incurred thereto.”[19] In response, Cotelidis sent Gaudelli written confirmation that the respondents had contacted the consumer on October 22, 2004 to arrange for the resumption of work but were refused, and that the consumer’s failure to allow the resumption of work constituted the consumer’s breach of the subject home improvement contract.[20]

The consumer subsequently hired a new architect, Gino Longo (hereinafter “Longo”) to design a system of I-beams and columns for additional support of the joists. He also hired contractorConcepts in Construction Corp. (hereinafter “Concepts”) to install the aforesaid supports and to complete the job, along with other vendors, paying a total of $124,998.48. The consumer chose to keep the lally column that was originally intended as temporary support, as well as the other construction as built by M&B,with the additional support as proposed by Longo, rather than tearing down M&B’s construction and starting over.In addition to Concepts, to whom the consumer paid $43,250, said vendors included Arthur DiBiasi Masonry (hereinafter “DiBiasi”), to whom he paid $17,500. Of that amount, $7,500 was allocated to the re-excavation ofthe area around the new rear foundation and the application of another waterproofing medium, Karnac, which was the only medium capable of being applied on top of the Watchdog waterproofing.