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Richardson Desil and the Department of Consumer Affairs v. Famek Management Corp. and Anagha Emeka Onuoha

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

RICHARDSON DESIL
and
THE DEPARTMENT OF CONSUMER AFFAIRS,
Complainants,
-against-
FAMEK MANAGEMENT CORP. & ANAGHA EMEKA ONUOHA,
Respondent. / DECISION AND ORDER
Violation Nos.: CD5-76261
DD5-76261
License Nos.: 1102982 (HIC)
1102984 (HIS)
Licensees’ Addresses:
984 East 106th Street
Brooklyn, NY
&
1117 East 103rd Street
Brooklyn, NY 11236
Date: November 20, 2003
November 20, 2003

N.Y.C. Department of Consumer Affairs  42 Broadway  New York, N.Y.  10004  (212) 487-4444

CD5-76261

Page 1

Appearances: For the Complainants: Richardson Desil. For Respondents: Anagha Emeka Onuoha

The respondent is charged with violating the following:

New York Administrative Code:

  1. Section 20-393(6) by willfully or deliberately disregarding and violating the building, sanitary, fire and health laws of the City of New York;
  2. Section 20-393(11) by failing to perform work under a home improvement contract in a skillful and competent manner;

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

  1. Section 1-12, by failing to comply with the Consumer Protection Law of 1969, as amended, and all regulations promulgated under that law;
  2. Section 2-221(a)(1), by failing to issue a written contract that contains the date of the transaction or the salesperson’s name and license number;
  3. Section 2-221(a)(2) by failing to issue a written contract that includes the approximate dates, or estimated dates, when the work will begin and be substantially completed, including a statement of any contingencies that would materially change the approximate or estimated completion date and whether a definite completion date is deemed to be of the essence.
  4. Section 2-221(a)(4), by failing to issue a written contract that includes a clause notifying the Complainant that the Licensee or any subcontractor who performs work pursuant to the contract and is not paid may have a claim against the Complainant which may be enforced against the property in accordance with the applicable lien laws;
  5. Section 2-221(a)(7) by failing to issue a written contract that includes a clearly stated guaranty or warranty which discloses the period of time covered;
  6. Section 2-221(a)(8), by failing to issue a written contract that includes a clause wherein it agreed to furnish the complainant, as buyer, with a certificate of Worker’s Compensation prior to the commencement of work, pursuant to the contract;
  7. Section 2-221(a)(9) by failing to issue a written contract that includes a clause requiring the Licensee to procure all permits required by law; and,
  8. Section 2-221(a)(10) by failing to issue a written contract that includes a statement, in bold type, to the effect that the complainant, as 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.

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

Findings of Fact

In or about early January 2001, the consumer purchased a one-family house situated at 363 Grant Avenue, Brooklyn, NY and obtained a loan through HUD for its rehabilitation. After his contractor became unavailable, a friend referred him to the respondent Onuoha. Mr. Onuoha represented himself to be “Frank Emeka” and that he and Famek Management Corp. (hereinafter “Famek”) were licensed home improvement contractors. However, at the time in question, neither respondent Famek nor respondent Onuoha were licensed by the Department of Consumer Affairs.[1] Previously, Mr. Onuoha had worked as a building superintendent, and Famek has managed buildings, but neither respondent had prior experience as a home improvement contractor.

On January 2, 2002, the consumer and respondents entered into an oral agreement, whereby the respondents were to hire subcontractors to perform the repairs as set forth in the HUD Specification of Repairs. The respondents never provided the consumer with a written contract. Mr. Onuoha instructed the consumer to write all checks payable to the order of “Frank Emeka”.

Work began on or about January 2, 2002 and continued through the end of January 2002. According to the HUD Specification of Repairs, the cost allocation for the work done was $11,443. However, when a HUD inspector visited the job site and discovered that the respondents were unlicensed, he advised that no HUD loan proceeds could be used to pay them and, further, that they could not continue working on the job. By that time, the following work had been done:

  • A new roof was installed;
  • Wall paper and paneling was removed;
  • Some demolition was performed;
  • Sheetrock walls were erected;
  • Bathroom tiles were laid;
  • Some electrical wiring and switches were installed;
  • Kitchen cabinets were obtained and installed;
  • The kitchen floor was installed; and,
  • Some of the debris had been carted away.

Although the consumer was then aware that Mr. Onuoha was unlicensed, and although he was not satisfied with the work respondents had performed, he felt compelled to pay $11,443 out of his own money for fear that Mr. Onuoha would file a mechanic’s lien against his property. That amount was paid in two installments, in February and March 2002, respectively.

The defective work performed by the respondents is as follows:

  • The floor and wall tiles in the bathroom were not laid evenly and are cracking;
  • The kitchen cabinets were installed improperly, with gaps in between each cabinet unit;
  • There was no adequate sub-flooring in the kitchen, and the

tiles were uneven;

  • The respondents installed sheetrock walls without first installing

all required circuitry and checking all of the existing switches,

outlets and fixtures to ensure that they were in proper working order.

Furthermore, regarding the switches and wiring that were installed, the respondents were not licensed electricians, nor did they subcontract the electrical work to a licensed electrician.

  • The roof leaks, causing severe water damage; and,
  • The respondents did not cart away all of the debris.

Although the kitchen cabinets were not installed properly, the cabinets themselves were of satisfactory quality and could be used once correctly reinstalled. The cost of the cabinets was $1,444.82, as evidenced by the Home Depot receipt dated 1/25/02 and issued to Mr. Onuoha. The cost allocations set forth in the HUD Specifications of Repairs for the above-referenced defective work are as follows:

Page 1, Section 4:

“Install new roof throughout dwelling.”

Cost: $2,000

Page 3, Section18:

“Replace all acoustic ceiling tiles as required. Remove all wallpaper and paneling. Replace and repair all defective plaster/drywall as required throughout dwelling.”

Cost: $2,500

Page 4, Section 25:

“Ceramic Tile floor ½ wall and Tub Area”Cost: $1,500

“Ceramic Floor Tile kitchen”Cost: $1,500

Page 6, Section 28:

“Provide light switch in level two middle bedroom. Provide additional outlets and circuits as required throughout dwelling. Check that all existing switches, outlets and fixtures are in safe and in proper working order.”

Cost: $2,230

Insofar as none of the electrical work was performed, all of the sheetrock walls have to be re-done, as do the floors in the bathroom and kitchen because they were not laid properly. In addition, the respondent failed to remove all of the construction debris, and the consumer paid $250 to have the remainder removed. Also, even though respondent Famek hired Waste Management of New York, LLC (hereinafter “Waste Management”) to remove the one half of the debris, it still owes it $270.62[2]. Lastly, the consumer paid another contractor $1,500 to re-install the kitchen floor.

The respondents never advertised any guaranty or warranty regarding the subject work.

Opinion

The credible evidence establishes that the respondents were unlicensed at the time of making of the subject oral home improvement contract. It further establishes that the respondents Famek and Onuoha never worked as home improvement contractors before. Mr. Onuoha’s argument that he was not acting as a contractor, but merely agreed to “arrange for workers to work” on the consumer’s house and oversee their work fails to establish a meritorious defense. The facts are that Mr. Onuoha and Famek Management Corp.[3] brought the subcontractors together on the job, oversaw their work, and accepted payment from the consumer. These actions bring both respondents within the definition of a “home improvement contractor” under Administrative Code §20-386.

In light of Mr. Desil’s credible testimony and supporting evidence, it is determined that the respondents failed to perform the subject home improvement work in a skillful and competent manner. This conclusion is supported by Mr. Onuoha’s lack of prior experience as a home improvement contractor and his admission at the hearing that neither he nor any of his workers was a licensed electrician. It is further supported by the fact that respondents’ workers constructed new walls without having had the existent circuitry checked by a licensed electrician. His denial that no electrical work was performed whatsoever was simply not credible, given his testimony that he was not consistently present at the job site, coupled with his inability to identify who was working on the job and in what capacity.[4]

It is thus determined that the roof, kitchen sub-floor and tile floor, the bathroom tile floor and walls, the sheetrock walls must be redone, and insofar as the respondent failed to check the electrical circuitry, the consumer is entitled to restitution based upon the respective cost allocations set forth in the HUD Specification of Repairs:

Sheetrock:$2,500

Bathroom tile floor and walls: $1,500

Kitchen sub-floor and tile floor: $1,500

Roof:$2,000

Electrical Circuitry:$2,230

He is further entitled to restitution for the amount of money he had to spend to remove the rest of the debris removal left by respondents:

$ 250

Lastly, it is determined that the consumer credibly established that respondent Famek Management failed to pay one of its subcontractors, Waste Management, the amount of $270.62. Insofar as Waste Management has the ability to enforce its claim by filing a lien against the consumer’s property, it is determined that the consumer is entitled to restitution in that amount, said sum to be used to satisfy Famek’s debt to Waste Management.

Insofar as the respondents failed to present the consumer with a written contract, they must be found guilty of Charges numbered 4, 5, 6, 8, 9 and 10.

However, the complainants failed to establish by a preponderance of credible evidence that the respondents violated the building, sanitary, fire and health laws of the City of New York. The record was unclear as to whether the respondents actually performed any electrical work that required a license. The complainants further failed to prove that constructing new walls without having checked the integrity of the circuitry violated a specific provision or provisions of the aforementioned codes. Accordingly, Charge #1 must be dismissed. In light of the consumer’s admission that the respondents never advertised any warranty or guaranty regarding the work, Charge #7 must be dismissed. Lastly, the complainants failed to properly plead a violation of 6 RCNY §1-12 and, accordingly, Charge #3 must also be dismissed.

Order

The licensee is found guilty of charge number(s) 2, 4, 5, 6, 8, 9 and 10, and is

Ordered to pay to the Department a TOTAL FINE of $1,750 as follows:

Charge 2:$500

Charge 4:$200

Charge 5:$200

Charge 6:$200

Charge 8:$200

Charge 9:$200

Charge 10:$250

Ordered to pay to the Complainant restitution in the amount of $10,250.62, as follows:

Sheetrock:$2,500.00

Bathroom tile floor and walls: $1,500.00

Kitchen sub-floor and tile floor: $1,500.00

Roof:$2,000.00

Electrical Circuitry:$2,230.00

Debris Removal$ 250.00

Monies owed to Waste Management$ 270.62

Charges #1, 3 and #7 are hereby dismissed.

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. Failure to comply with this Order with thirty (30) days will result in suspension of the license.

______

Nancy J. Schindler

Deputy Director of Adjudication

If the respondent wishes to file a MOTION TO VACATE this decision, it must submit the motion within 15 days from the date it 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 the restitution amount; 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, the respondent must serve a copy of its motion to vacate on both the consumer complainant and theLegal Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

If the consumer complainant wishes to APPEAL this decision, or file a MOTION FOR REHEARING, you must file the appeal or motion within 30 daysof 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).

N.Y.C. Department of Consumer Affairs  66 john street  New York, N.Y.  10038  (212) 361-7770

[1]Administrative notice of Department records establishes that Famek Management Corp. and Anagha Emeka Onuoha respectively have Home Improvement Contractor and Home Improvement Salesperson license applications pending, and that Mr. Onuoha is president of Famek Management Corp.

[2] Mr. Desil testified that, during a recess of the hearing, he called Waste Management of New York, LLC at 718-386-7900 and spoke with one Neil Sanchez, who advised that although Famek Management had originally instructed Waste Management to charge its credit card in the amount of $270.62, it put a “stop payment” order on that charge, and that as of October 20, 2003, the amount due is still outstanding.

[3] This is evidenced by the invoice Waste Management of New York, LLC issued to Famek Management Corp. on 2/1/02, Invoice #094-0949525.

[4] It is also noteworthy that, although Mr. Onuoha came with a witness, he chose not to have the witness testify and sent him home, mid-way through the hearing.