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2. Disclosure of Agency Relationships

Declaratory Ruling 91-47 Matter of Jacobi, D'Alessandro, Jacobi & Sieghardt - pursuant to RPL §443(3)(d) permissible to have acknowledgement of parties to the contract signed at time of non-binding offer to purchase

"A Consumer's Guide to Employing Real Estate Brokers" (pamphlet available from DOS)

137 DOS 92 Matter of DOS v. Maldon - 1) as long as tell potential buyer that you represent seller, do not have to identify owner (19 NYCRR §175.7); 2) must disclose broker's ownership of interest in property (19 NYCRR §175.6)

6 DOS 93 Matter of Cornell Associates Realty - failure to make clear (19 NYCRR §175.7) in simultaneous/dependent transactions

Opinion Letter 92-49 (Shirani B. Ponnambalam) - broker offer services to facilitate mortgage prepayment; must ensure full disclosure and informed consent

Opinion Letter 93-1 (Marilyn H. Kaye) - reviews form letters and notices regarding who broker represents (19 NYCRR §175.7)

Opinion Letter 93-2 (Charles Caputo) - disclose referral fees and material facts regarding reference to home repair/improvement contractors; fulfill pre-existing fiduciary relationship

 

Opinion Letter 93-6 (Patricia A. DeBolt) broker who is employed by Housing Authority should disclose licensee status as "buyer broker"

48 DOS 93 Matter of DOS v. Chetiara Realty [Bonar] - pleading amended to conform to proof; commission must be relevant to and represent charges for some legitimate services; no proof of relationship to tenant or retainage of unearned commission; no proof of failure to disclose (no live testimony of consumer)

66 DOS 93 Matter of Kingsley - sales associate failure to complete RPL §443 agency disclosure form; broker unaware and had made good faith efforts to educate sales staff; parties knew who broker was representing; reprimand

80 DOS 93 Matter of Droz d/b/a Adirondack Real Escapes - extensive delay (6 years after event and 5 years after complaint) coupled with prejudice to licensee (witnesses memories faded) and absence of excuse from DOS result in dismissal of one charge (regarding alleged delay in making deposit of buyer's check); unlawful practice of law in use of form contract without attorney approval clause which is not jointly approved by bar association and Board of Realtors (review by two attorneys is insufficient); failure of proof that broker did not make clear for whom he was acting; permissible for broker to modify his commission agreement and accept second mortgage from buyer at suggestion of seller's attorney

83 DOS 93 Matter of Farrell - failure to timely obtain a signed disclosure form from seller prior to listing; brief period since new legislation effective; no prejudice to parties; reprimand

93 DOS 93 Matter of Piper - failure to timely file change of address card; use of unlicensed name; charge of improper location of §175.24 explanation (on front of listing) dismissed, as property was vacant land; failure of proof re: disclosure of agency status; acting as associate broker without proper license; employment of salesperson whose license had expired

125 DOS 93 Matter of DOS v. Domovsky - DOS investigation spot checking for RPL §443 compliance, asks broker's son (who was licensee not affiliated with the office, but merely covering in his mother's absence) about use of disclosure notices and to see files; RPL §443 does not apply to apartment house with more than 4 units; charge of failure to use RPL §443 notice and failure to cooperate in investigation dismissed; no proof of demand for records per RPL §442-5[5] of a licensee affiliated with the respondent; no proof of vicarious liability under RPL §442-c

CRC #413 Matter of DOS v. Jacabacci, Consent Order - payment of buyer's deposit to seller prior to agreement on terms of sale; failure to refund deposit in accordance with terms of binder; inadequate sales agreement; failure to provide RPL §443 disclosure notice; improper advertising of "possible mother/daughter" although permits for two-family use had not been obtained; $750 fine on sales associate

CRC #365 Matter of DOS v. Bellezza, Consent Order - failure to use separate escrow account; failure to use RPL §443 disclosure notice; failure to return brokerage commission; 1-month suspension and $975.14 restitution

CRC #454 Matter of DOS v. Valladares, Consent Order - payment of buyer's closing costs out of commission proceeds is unlawful commission splitting RPL §442; unlicensed business name; failure to make clear agency relationship; restitution of $9,600 plus $1,100 interest; fine of $1,000 or suspension until compliance

9 DOS 94 Matter of DOS v. Shane - motion for pre-hearing discovery beyond SAPA 401(6) is denied; rules re:subpoenas in administrative proceedings reiterated; proper procedure of reserving right to file post-hearing memorandum of law; MLS form listing agreements are acceptable; individual license not sufficient to allow acting as representative of corporate licensee -need affiliated license; agreements procured by individual acting under name of firm but without affiliated license are illegal and unenforceable - no brokerage fee can be claimed; misrepresentation and execution of unauthorized extension; misrepresentation of law (distinction between canceling agency authority and abiding contract rights); RPL §443 control the disclosures required of licensees; subsequently licensed corporation not vicariously liable; failure to provide copy of agreement 175.12; inadvertence considered in determining penalty

CRC #465 Matter of DOS v. Rubino, Consent Order - failure to provide RPL §443 disclosure notice; $500 fine

CRC #383 Matter of DOS v. Graham, Consent Order - commingling security deposits in operating account; presentation of checks which could not be negotiated; conversion and failure to make clear (175.7); restitution ($1,547 and $1,466) and $2,000 fine

CRC #493 and #497 Matter of DOS v. Siony, Consent Order - illegal retaining of deposit; retaining of unearned commission; failure to make clear (175.7); unlicensed salesperson; restitution ($2,888 and $663) and $5,000 fine

72 DOS 94 Matter of DOS v. Sampson - failure to prove that licensees neglected to provide RPL §443 disclosure notice or the retention of a fee for renting an illegal apartment

86 DOS 94 Matter of DOS v. Lando - RPL §443 acknowledgement to be obtained by licensee involved in transaction; failure of proof that representative broker knew of RPL §443 violation or retained proceeds of transaction after knowledge, therefore no vicarious liability

96 DOS 94 Matter of DOS v. Demasi - failure to use RPL §443 disclosure notice for sales or rentals of 1-4 family house (33 rentals); reliance on MLS form no defense to or excuse for not using form in rental transactions; broker presumed to know the law; lack of knowledge, unlawful motive or fraudulent intent considered in assessing sanction; $500 fine

139 DOS 94 Matter of DOS v. Bonet - DOS fails its burden of proof of violation of RPL §443; no proof that apartment building was a 1-4 family dwelling

113 DOS 94 Matter of Carroll - DOS has jurisdiction to determine fraud or fraudulent practice or untrustworthiness and incompetence as to activity which could be violation of other law, such as Labor Law; no jurisdiction of respondent who was unlicensed when alleged unlawful acts occurred and not licensed when notice of hearing and complaint served; DOS fails to prove fraud or misrepresentation in disclosure notices; failure to prove time correlation of work as salesperson and collection of unemployment insurance; failure to prove false statement to collect unemployment insurance; fraudulent practice doesn't require intent; General Business Law §349(a) deceptive act or practice; failure of proof of violation of RPL §443(e)(5)

3 DOS 95 Matter of Tucci - licensee as partner in entity selling property to builder does not come within 19 NYCRR §175.6; dual agency found where licensee represents seller in real estate transaction and serves as mortgage broker for buyer; failure to make agency relationships clear violates 19 NYCRR §175.7; pre-hearing and post-hearing motions; restitution of $1,081; fine of $1,000; DOS determination vacated by stipulation of settlement; non-admission, restitution of earned mortgage broker fee

14 DOS 95 Matter of Myers - broker who assists buyer in obtaining mortgage on other property to facilitate down payment is agent of buyer; broker is seller's agent in purchase transaction; as buyer's agent, depositing of down payment in his operating account violates 19 NYCRR §175.1; as seller's agent, depositing in operating account does not violate 19 NYCRR §175.1; conversion of deposits, but no proof of grand larceny as no proof to permanently deprive; fraudulent practices in failing to forward deposit; where only commission is for mortgage, no proof of unearned commission; vicarious liability of corporate licensee for acts of representative broker; restitution of money to which not entitled, with interest

24 DOS 95 Matter of Seplow - disciplinary charge jurisdiction where licensee's renewal has been previously denied; proof of service of process; agency relationship and duties; fraud in sale of cooperative apartment, including false information about particular sale and willful non-disclosure of material information; failure to obey buyer's obvious intent to have deposit treated as funds to be held in escrow as payments to seller; conversion; rules applicable to supplemental pleadings - absent surprise or prejudice, motion to file and serve could be granted on day of hearing, but here respondent doesn't appear, so supplemental complaint dismissed without prejudice; DOS fails its burden of proof as to extortion and retention of unlawful commission and unauthorized practice of law; when respondent became optionee to purchase subject matter, agency relationship ceased to exist; fiduciary duty precludes respondent from acting simultaneously as agent and principal in a transaction; restitution of $35,000 deposit plus interest at legal rate for judgments

22 DOS 95 Matter of Tenteromano - complaint charges failure to obtain disclosure notices from tenant, rather than failure to obtain acknowledgments or to file declarations of refusal; complaint not amended to conform to proof as single exchange in hearing; not sufficient litigation of issue to warrant an amendment; lack of prior notice

26 DOS 95 Matter of Cepparo - complaint charges broker failed to provide disclosure form to tenant and to landlord and failed to obtain signed acknowledgments; evidence shows unnamed salesperson failed to do so; complaint does not charge broker is responsible for salesperson's failure or failure to properly supervise; as respondent was not present at hearing, pleading cannot be amended to conform to the proof; lack of notice; complaint dismissed

Opinion Letter June 8, 1995 (E. Adam Leyens) - Referred fees to broker from home building, home remodeling and home inspections business can be offered where such incentives are disclosed to clients and customers and clients or customers are under no obligation to use such services. Such program can be offered to brokers only and not to associate brokers or sales persons under RPL §442-a

Opinion Letter August 18, 1995 (George Heeley) - RPL §443 disclosure at open houses; seller's agent does not have to present a disclosure form to every person who attends an open house where no "substantive contact" has been made (broker greeting people, showing them the house, providing general information and answering questions about the property). "Substantive contact" occurs should buyer express serious interest in discussing the terms of an offer or where seller's agent helping buyer identify suitable property

65 DOS 95 Matter of DOS v. Dawns Horizon Realty, Inc. - advertising; zoning; did broker know or have reason to know of violation; broker's conduct effecting or encouraging violation of zoning and occupancy regulations demonstrates untrustworthiness and incompetency; refund deposit, suspension; relocation of office without filing change of address violates RPL §441-a[5]; merely taking phone calls does not require licensure, broker not required to file change of association for salesperson, RPL §441[1][a]; failure to give prospective tenant disclosure form, violation RPL §443, failure in such case to get acknowledgement of receipt not violation

139 DOS 96, Matter of DOS v. Toppin - burden of proof; dual agency; disclosure of agency relationships; licensee’s purchase of property; DOS has the burden to prove, by substantial evidence, the allegations in the complaint; licensee advised seller that he was a real estate salesperson at first contact; knowledge by seller’s attorney, acting as seller’s agent, of licensee’s license status is imputed to seller; salesperson’s broker may act as agent of the seller in the same transaction where salesperson is purchasing property; agency is a consensual relationship, therefore, agent cannot be bound as an agent without its consent; complaint dismissed

80 DOS 97 Matter of DOS v. Robin - laches; reliance on attorney advise; mortgage applications; real estate brokers license needed to negotiate loan on unimproved property; mortgage broker license only applies to residential mortgage loans; disclosure of ownership interests; dual agency; disclosure of agency relationships; bankruptcy; to establish defense of laches, respondent must show substantial prejudice arising out of the delay such that the delay significantly and irreparably handicapped it in preparing a defense; reliance on attorney advise is a valid defense and may relieve respondent of liability; DOS has jurisdiction to review licensee’s conduct for untrustworthiness or incompetency even when not acting in licensed capacity; Reg. 175.7 requires a broker to make it clear for which party he is acting; licensee may act as a dual agent only upon full and fair disclosure and with the informed consent of the parties; it is not necessary that there be a showing of injury or actual fraud for a finding of improper conduct regarding dual agency so long as the licensee fails to obtain the principals informed consent; licensee may act as agent and principal in same transaction on disclosing all relevant facts to principal; broker may be required to return monies, with interest, where broker was not entitled thereto; discharge of broker’s debts in bankruptcy prevents DOS from ordering refund, however, DOS may impose other sanctions; corporate broker is responsible for acts of its representative broker within actual or apparent scope of authority; sanctions cannot be applied against entity no longer licensed, which has been unlicensed for more than two years and has no automatic right of renewal; individual broker’s license suspended for 6 months

139 DOS 97 Matter of DOS v. Martin - hearing may proceed ex parte as service of notice of hearing is sufficient where it is mailed to respondent’s last known business address by certified mail; broker not guilty of failing to cooperate with DOS investigation where broker’s statement that documents had been misplaced was unrefuted; providing false information to investigators violates RPL §442-e(5); broker allows unlicensed wife to act as real estate salesperson; broker not held to violate agency disclosure provisions of RPL §443 where DOS fails to establish property was a one-to-four family dwelling; broker violates 19 NYCRR 175.7 by failing to disclose to the parties whom he was representing; broker did not violate 19 NYCRR 175.7 when he accepted two commissions in the same transaction, from tenant and DSS on behalf of tenant, because DSS was not a party to the transaction; broker retained an unearned commission when paid same commission by tenant and DSS and refused to return commission to tenant; four months’ license suspension and forfeiture of both commissions with interest

274 DOS 97 Matter of DOS v. Fee - due process; laches; fraudulent practice; duty to supervise sales associates; disclosure of agency relationships; vicarious liability; DOS is not estopped from proceeding with investigation after issuing letter to broker advising that DOS was contemplating no further action and was closing the file; broker’s defense of laches fails where broker fails to establish substantial prejudice arising out of the delay; DOS fails to establish salesperson’s conduct was a fraudulent act where, although salesperson knew representations were false and she intended purchasers to act on the misrepresentation, DOS failed to establish that purchasers detrimentally relied on misrepresentations; salesperson engaged in fraudulent practice by making misrepresentation to purchasers (salesperson misrepresents reasons for previous purchasers not going forward with transaction); DOS fails to establish violation of RPL §443 by failing to establish that disclosure form presented in evidence was the disclosure form related to the sale of the subject property; inconsistency in complaint is immaterial where complaint gives respondent sufficient notice of the charges; corporate broker and representative broker demonstrated incompetency by employing unlicensed associate broker; representative broker’s reliance on unofficial lists of licensees supplied by County Board of Realtors is misplaced and demonstrates incompetency; representative broker and corporate broker are vicariously liability for misconduct of salesperson and associate brokers where they have actual knowledge of the misconduct; commission arising out of unlicensed activity of associate broker is unearned; corporate broker and representative broker fined $1,000.00 and directed to disgorge commission of $6,125.00, plus interest; salesperson fined $1,000.00; unlicensed associate broker fined $500.00 and directed to disgorge unearned commission of $6,125.00, plus interest

287 DOS 98 Matter of DOS v. Uqdah Realty & Management Corp. -- deposits; jurisdiction; fraudulent practices; failure to pay judgment; vicarious liability; notary public; disclosure of agency relationship; broker violated 19 NYCRR 175.1 when he deposited escrow funds into his operating account; broker committed conversion when his operating account fell below deposit amount; broker engaged in fraudulent practices when he illegally retained buyer’s trust funds and attempted to qualify prospective buyer for mortgage by falsely stating their employment; broker failed to disclose his agency relationship to his client; failure to pay judgment; corporate real estate broker vicariously liable and charged with actual knowledge of violation of law because of representative broker’s cognizant misconduct as corporate officer; broker is not required to deposit a refundable commission in an escrow account unless contractually demanded; corporate broker and representative broker’s license revoked; restitution of deposit of $12,000 plus interest; notary public commission revoked based on misconduct as a real estate licensee

CRC #96-3335 Matter of DOS v. Gitlin, Consent Order -- failure to provide agency disclosure pursuant to RPL §443; $750 fine and restitution in the amount of $2,030.21 plus interest

CRC #97-2534 Matter of DOS v. Fornario, Consent Order -- broker failed to obtain duly executed acknowledgments of prospective buyers and/or sellers to real estate agency agreement disclosure forms in five transactions; $500 fine

CRC #98-0065 Matter of DOS v. Goldman, Consent Order -- broker failed to provide statutorily required agency disclosure form; $500 fine, in the event fine is not timely paid, license suspended until fine paid plus 60 days

CRC #97-3303 Matter of DOS v. Castelli, Consent Order - licensee pleads nolo contendere to acting as an undisclosed principal in purchasing property from his principal; $1,000.00 fine, restitution of $4,200.00 plus interest

2 DOS 99 Matter of DOS v. Moore - disclosure of agency relationships; dual agency; fraudulent practice; unearned commission; vicarious liability; broker fails to provide agency relationship disclosure form to prospective buyer at time of first substantive contact; broker fails to make it clear for which party he is acting; broker agrees to provide the prospective buyer with an appraisal thereby becoming buyer’s agent while representing seller; broker uses information received from one client for the benefit of another client to the detriment of the first; failure to deal honesty with the public; claiming and bringing suit for an unearned commission is a demonstration of untrustworthiness; broker knew he was not entitled to commission where offer submitted was never signed by seller and aware of prior full price offer; broker engaged in dual agency without informed consent of the principals; fraudulent practice where broker misused information obtained for the benefit of one client to the other client’s detriment; DOS fails its burden of proof to establish that broker acted improperly by not advising sellers of risks in accepting or failing to accept any competing offers; corporate broker vicariously liable for acts committed by its representative broker within actual or apparent scope of authority; revocation of corporate and representative broker’s licenses

2 DOS APP 99 (2 DOS 99) Matter of Moore v. DOS - administrative appeal; disclosure of agency relationships; unearned commissions; on appeal, the Secretary may review questions of procedure, facts, law and policy, and may choose to expand the record by directing oral argument (19 NYCRR §400.2[k]); broker fails to timely provide agency disclosure form; broker’s argument that it is custom and practice in Rockland County to present the disclosure form at the time a prospective buyer makes an offer on a home (as opposed to prior to entering into a listing agreement as a buyer’s agent or at the time of first substantive contact with the buyer when a seller’s agent) is unavailing where no evidence presented to support this position and, in any event, wide spread non compliance does not justify failure to adhere to clear mandate of statute; broker did not represent buyer in transaction by merely agreeing to provide prospective buyer with appraisal; failure to provide appraisal amounts to breach of contract, not fraud, and constitutes failure to deal honestly with the public; receiving confidential information from prospective buyer while not representing buyer and not disclosing to buyer that broker would use this information constituted untrustworthiness and incompetency, but not fraudulent practice; substantial evidence fails to support determination that broker clearly knew he was not entitled to a commission (broker consulted with attorney), even though commission suit fails; penalty of revocation is lawful sanction, although lesser penalty will be imposed based upon facts in record; determination of license revocation modified, individual and corporate brokers’ licenses suspended for six months

79 DOS 99 Matter of DOS v. Pagano - disclosure of agency relationships; failure to appear at hearing; proper business practices; unauthorized practice of law; unearned commissions; vicarious liability; fraudulent practice; jurisdiction; ex parte hearing may proceed upon proof of proper service; DOS has jurisdiction after expiration of respondents’ licenses as acts of misconduct occurred and the proceedings were commenced while the respondents were licensed; licensee fails to timely provide seller client with agency disclosure form prior to entering into listing agreement and fails to timely provide agency disclosure form to buyer upon first substantive contact; broker fails to make it clear for which party he is acting; broker violates 19 NYCRR 175.24 by using exclusive right to sell listing agreement without mandatory definitions of “exclusive right to sell” and “exclusive agency”; broker

breaches fiduciary duties to seller clients by misleading them as to buyer’s ability to financially consummate the transaction; broker breaches his fiduciary duty to seller by referring seller to the attorney who represented the buyers when he knew or should have known such attorney could not properly protect seller’s interests; improper for broker to use listing agreements providing for broker to retain one half of any deposit if forfeited by buyer as such forfeiture clause could, by its terms, allow broker to retain part of the deposit when broker did not earn a commission; broker must conduct business under name as it appears on license; broker engaged in the unauthorized practice of law in preparing contracts for purchase and sale of real estate which did not contain a clause making it subject to the approval of the parties’ attorneys and were not a form recommended by a joint bar/real estate board committee; broker demonstrated untrustworthiness and incompetency in using sales contract which purported to change the terms of the listing agreement to include a higher commission; broker demonstrated untrustworthiness and incompetency in using contracts of sale which were unclear, ambiguous, vague and incomplete; broker failed to amend purchase agreement to reflect amendment to increase deposit amount; broker demonstrated untrustworthiness in back-dating purchase agreements; broker demonstrated untrustworthiness in participating in scheme to have seller hold undisclosed second mortgage and to mislead first mortgagee about the purchaser’s financial ability to purchase; broker demonstrated untrustworthiness by claiming unearned commission and filing affidavit of entitlement for unearned commission; DOS fails to establish by substantial evidence that respondent acted as undisclosed dual agent; corporate broker bound by the knowledge acquired by and is responsible for acts committed by its licensees within the actual or apparent scope of their authority; corporate and individual brokers’ licenses revoked, no action taken on application for renewal until proof of payment of sum of $2,000.00 plus interests for deposits unlawfully retained

356 DOS 99 Matter of DOS v. Thomas - disclosure of agency relationships; failure to appear at hearing; sanctions;ex parte hearing is permissible upon proper notice; failure to provide RPL §443 agency disclosure to prospective tenant upon first substantive contact; failure to disclose broker’s family relationship with landlord; proper to impose fine higher than that which was asked for in settlement offer ($200.00); $500.00 fine

101 DOS 00 DOS v. Re/Max All-Pro Realty - accounting to clients; disclosure of agency relationships; listing agreements; vicarious liability; broker fails to provide RPL §443 agency disclosure notice; one co-tenant in a tenancy in common can execute a valid agency employment contract with a broker where either (i) prior to the achievement of the agency purpose, the broker lacks actual knowledge of the joint ownership (liability to the broker is circumscribed only to the joint owner who hired the broker), or (ii) where the non-assenting co-owner subsequently ratifies or acquiesces in the action of the other co-owner; broker fails to follow his principal’s instructions with respect to the collection of rents and deposits; broker negligently prepares purchase and sale contract and occupancy agreement (unauthorized practice of law not alleged in complaint); broker fails to provide accounting to client upon client’s request; corporate broker is vicariously liable for the unlawful acts of its representative broker; corporate broker’s license and representative broker’s license are suspended for six months

319 DOS 00 DOS v. Meslay - collateral estoppel; disclosure of agency relationships; failure to appear at hearing; exparte hearing may proceed upon proof of proper notice; broker failed to provide RPL §443 agency disclosure to prospective tenant at first substantive contact; judgment rendered in civil court is binding upon DOS tribunal; failure to pay judgment demonstrates untrustworthiness unless broker presents valid evidence of an inability to pay; broker’s license revoked

321 DOS 00 DOS v. Kerr - deposits; failure to appear at hearing; failure to pay judgment; disclosure of agency relationships; material misstatement on application; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proper notice; broker fails to provide RPL §443 agency disclosure notice to landlord/client prior to entering into listing agreement; broker commits conversion upon exercising unauthorized right of ownership over rental deposits and payments collected on behalf of principal; failure to satisfy judgment is demonstration of untrustworthiness unless broker presents valid evidence of inability to pay; failure to respond to DOS request letter constitutes failure to cooperate; material misstatement on application by denying prior license suspension; broker’s license revoked

CRC #98-1440 Matter of DOS v. Knapp - failure to provide RPL §443 agency disclosure; commingling and converting escrow funds; broker’s license revoked

CRC #98-0769 Matter of DOS v. Prince, Consent Order - failure to utilize agency disclosure forms pursuant to RPL §443; failure to file and return rents and/or security deposits; commingling client funds constitutes conversion and violates 19 NYCRR §175(1); preparation of contracts that failed to contain an attorney approval clause and were not on approved forms constituted the unauthorized practice of law; attempting to and/or negotiating directly with the seller violated 19 NYCRR §175.8; $15,000.00 fine, restitution in the amount of $567.50 and broker agrees that his license shall be revoked if he is found or pleads nolo contendere or admits, after a disciplinary hearing, to have violated Article 12-A and stipulates not to have any financial or ownership interest in any business which holds a real estate broker’s license during any period of time he is not licensed

CRC #99-0704 Matter of DOS v. Singh, Consent Order - failure to provide written agency disclosure form pursuant to RPL §443; $500.00 fine and restitution in the amount of $2,037.00

375 DOS 00 Matter of DOS v. Gorr – disclosure of agency relationship; unearned commissions; agency disclosure pursuant to RPL §443 applies to the listing of farm property upon which there is a 1 to 4 family residential dwelling (farm included two 2 family houses and 1 single family house); failure to make it clear for which party broker is acting; broker may act concurrently as an agent and as a principal in a transaction on disclosing all relevant facts fully and completely to her principal; broker failed to disclose to seller client that she was a 50% shareholder in the corporate purchaser and was an undisclosed principal; claiming an unearned commission is a demonstration of untrustworthiness; license revoked

 

6 DOS APP. 00 Gorr v. DOS - administrative appeals; failure to utilize agency disclosure form regarding property where a portion of the property was being utilized as a residence; failure to make clear for whom broker was working; failure to disclose broker was acting as both agent and principal in representing the seller and being a primary shareholder in the corporate purchaser; ALJ decision to revoke license affirmed and modified to order restitution in the amount of $23,000.00 for unearned commission for violation of fiduciary duties

378 DOS 00 Matter of DOS v. Ali - amendment of complaint; disclosure of agency relationship; DOS may not amend its complaint to conform to the proof where the issue sought to be added was not fully litigated (failure to provide agency disclosure form); broker earned his commission for finding an apartment for a client when he obtained for that client a lease to an apartment which the client and landlord executed; broker not liable to client for apparent dishonesty of landlord and/or landlord’s managing agent (alleged bait and switch); charges dismissed

393 DOS 00 Matter of DOS v. Finley - disclosure of agency relationships; unauthorized practice of law; failure to provide agency disclosure form to seller client prior to entering into listing agreement and failure to provide to buyer prior to first substantive contact; RPL §443 applies to sale of working dairy farm which includes single family residence; once DOS establishes that broker prepared purchase contract, burden of proof shifts to broker to show that contract was prepared using a properly devised form; broker fails to meet its burden to establish that sales contract met the requirements of Duncan & Hill; broker engaged in the unauthorized practice of law for giving legal advice orally

590 DOS 00 DOS v. Fletcher - disclosure of agency relationship; broker fails to provide agency disclosure form to either prospective tenant or owner (broker represented both potential tenant and owner in negotiation of rental terms); conduct by broker that has the effect of violating or that encourages violation of local zoning and occupancy regulations is a demonstration of untrustworthiness and incompetency, however, DOS fails to establish either that the broker knew of or had a duty to inquire about the illegality of the apartment rented; $1,000.00 fine

597 DOS 00 DOS v. Chintomby - disclosure of agency relationship; unlicensed activity; salesperson failed to provide agency disclosure form; sales agent engaged in regulated real estate transaction at time he was not licensed; oral agency employment created without a defined term is an employment at will terminable on proper notice at any time prior to the completion of the agency purpose; salesperson’s attempt to list property without seller’s knowledge, consent or ratification was invalid initially; salesperson’s termination of association with broker resulted in a termination of the agency relationship between the salesperson and clients of the broker; 19 NYCRR 175.12, which requires a real estate broker to deliver a duplicate original of any document to any executing party where the document has been prepared by or under the supervision of the broker and where the document relates to a regulated real estate transaction in which the broker might participate as a broker, is not applicable to salespersons; salesperson engaged in fraudulent business practice; salesperson’s license revoked

598 DOS 00 DOS v. Mannarino - agency relationship; deposit; agency relationship established as a matter of law where broker obtained form contracts from seller, completed the contract on terms acceptable to both seller and buyer, accepted the buyer’s escrow deposits and both buyer and seller consented to the broker’s actions; broker acts a fiduciary even when acting gratuitously as a volunteer in an intra-familial transaction; broker bound by applicable agency and contract law; purported oral modification of escrow terms in written sales contract is invalid; wrongful delivery of deposit constitutes conversion; restitution in the amount of $35,700.00

CRC #99-1010 Matter of DOS v. Caminiti, Consent Order - disclosure of agency relationships; unlicensed activity; broker employed an unlicensed person and failed to provide written agency disclosure pursuant to RPL §443 in three separate transactions; $3,000.00 fine

CRC #99-3993 Matter of DOS v. Sheridan, Consent Order - disclosure of agency relationships; duty to supervise sales associates; salesperson fails to provide agency disclosure pursuant to RPL §443; broker failed to supervise salesperson; salesperson’s license suspended for ninety days; broker pays fine of $500.00

CRC #00-0429 Matter of DOS v. Greene (Gryanviski, Ltd.), Consent Order - disclosure of agency relationships; broker failed to provide written agency disclosure pursuant to RPL §443; $500.00 fine

CRC #00-1546 Matter of DOS v. Naber, Consent Order - disclosure of agency relationships; dual agency; broker failed to provide written agency disclosure and acted as an undisclosed dual agent; $250.00 fine and restitution in the amount of $537.50

6 DOS APP. 01 (590 DOS 00) Matter of DOS v. Fletcher - disclosure of agency relationships; res judicata; broker prevails in civil action over client for earning commission of $500.00 and locating an apartment for client; broker fails to provide RPL §443 agency disclosure form in said transaction and is, after hearing, fined $100.00; DOS is precluded from re-litigating commission issue by doctrine of res judicata which applies in administrative proceedings when the same thing was decided earlier by a court of law; ALJ’s refusal to order broker to reimburse client the commission is affirmed

292 DOS 01 DOS v. Loutraris - disclosure of agency relationship; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; salesperson failed to provide RPL §443 agency disclosure form to prospective tenant and failed to either obtain the prospective tenant’s signed acknowledgment or to prepare a written declaration of the facts of the refusal; $250.00 fine

2 DOS APP 02 Matter of Turyan v. DOS - decision of administrative law judge upheld where broker violated numerous fiduciary duties including advancing her own interests above those of her client, negotiating a contract to buy her client’s business without their permission and failing to disclose material facts relating to the sale of a business; brokers license revoked

921 DOS 01 DOS v. Greenberg - disclosure of agency relationships; failure to cooperate with DOS investigation; deposits; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; DOS fails to establish broker commingled client’s funds where all rent deposits were made into owner’s bank account even though some rents were purportedly deposited late; broker breaches duty of reasonable care, skill, diligence and judgment in negligently performing contractual obligations pursuant to a management agreement in keeping units rented to desirable tenants, diligently collecting rents and rendering timely monthly reports; DOS fails to prove broker engaged in fraud and fraudulent practices; broker fails to provide agency disclosure form to client; brokers license revoked

104 DOS 02 DOS v. Barnett - disclosure of agency relationships; failure to cooperate with DOS investigation; unearned commissions; unlicensed activity; broker failed to provide agency disclosure form to landlord/client and prospective tenant; broker demanded and received a security deposit and a commission contingent upon approval of rental accommodation by HUD and commingled and converted said sums when approval was not obtained; broker makes false statements during DOS investigations; broker engaged in a regulated real estate transaction under an unlicensed name; broker failed to comply with negotiated settlement terms to refund $2,100, pay $500 fine and execute consent order; restitution ordered in the amount of $2,100, $500 fine; brokers license suspended until proof of compliance

445 DOS 02 Matter of Schuler – deposits; disclosure of agency relationships; proper business practices; unlicensed activity; salesperson engaged in licensed activity while not under the supervision of an employing broker; salesperson failed to follow the instruction of his employing broker to file change of association forms with DOS that broker provided to salesman; failure to pay judgment without showing that salesperson is unable to do so; failure to deposit rent deposit in escrow when salesperson is acting without the supervision of an employing broker; failure to provide agency disclosure form; application for renewal of salespersons license denied

649 DOS 02 DOS v. Holzbach – disclosure of agency relationships; proper business practices; sanctions; unauthorized practice of law; vicarious liability; broker fails to timely provide agency disclosure form to buyer although disclosure form could have been faxed to and received from buyer; broker back dated agency disclosure form demonstrating incompetency; use of designated agent form without the use of required agency disclosure form pursuant to RPL §443(4); use of “removal of contingency” addendum to contract which did not contain an attorney approval clause and was not on a form jointly approved by the County Bar Association and REALTOR Association constituted the unauthorized practice of law; corporate broker liable for the acts of its representative broker; proper to impose a higher fine after hearing than that which was offered in settlement (joint fine of $2,000.00 offered); associate broker fined $2,000.00, representative broker fined $1,000.00, and corporate broker fined $2,000.00

730 DOS 02 DOS v. New World Realty of New York, Inc. – availing of license; deposits; disclosure of agency relationships; duty to supervise sales associates; failure to pay judgment; proper business practices; DOS has jurisdiction where disciplinary action was started while individual was licensed as an associate broker and was eligible to automatically renew at the time of the disciplinary hearing; salesperson owned voting stock in licensed corporate real estate broker, failed to pay judgment and failed to present evidence of inability to do so, and engaged in unlicensed activity after license expired; representative broker availed corporate real estate brokers license to salesperson; representative broker failed to properly supervise salesperson by permitting and authorizing salesperson to act as a real estate broker; broker and salesperson failed to make agency disclosures and failed to deposit funds of principal in a special bank account; real estate transaction conducted was a fraudulent business practice; DOS fails to prove the unauthorized practice of law; salesperson’s license revoked and salesperson ordered to pay refund of $1,406.00 of illegal commission collected; representative broker’s license revoked and broker ordered to refund $74.00 of illegal commission collected; representative broker fined $5,000.00

827 DOS 02 DOS v. Vision Realty Corp. – bad check; disclosure of agency relationships; DOS fails its burden of proof; vicarious liability; salesperson and broker failed to provide agency disclosure form; representative broker retained an unearned commission in a rental transaction where prospective tenant neither occupied nor took possession of the rental accommodation; DOS fails to establish fraudulent practice, breach of fiduciary duty, misrepresentation, failure to supervise, failure to deal honestly with a member of the public, illegally retaining deposit monies or converting monies; notice of protest is presumptive evidence that check was dishonored but not presumptive evidence of insufficiency of drawer’s funds at the time of utterance; DOS fails to establish violation of bad check statute; salesperson admonished; corporate broker and representative broker ordered to refund $850.00 commission and pay $500.00 fine

861 DOS 02 DOS v. Birch – bad check; disclosure of agency relationships; deposits; failure to appear at hearing; failure to cooperate with DOS investigation; proper business practices; vicarious liability; ex parte hearing may proceed upon proof of proper service; broker was directed to hold deposit check until offer was accepted and by depositing check without the offer having been accepted she breached her fiduciary duties; broker issued bad checks drawn on her escrow account; broker commingled funds by not withdrawing her earned commissions from escrow account promptly and allowing the money to remain in the account; broker failed to cooperate with DOS investigation by responding to document requests; broker operated business at an unlicensed address; corporate broker is responsible for the acts of its representative broker; broker fails to deal honestly and fairly by failing to advise purchaser that her offer had been accepted by only one of two owners of the property; corporate broker’s and representative broker’s licenses revoked; salesperson fined $1,000.00

1 DOS 03 DOS v. McLean-Rich – disclosure of agency relationships; dual agency; sellers executed a dual agency statement and will not be excused from the executed dual agency statement where sellers complain that the faxed dual agency statement was illegible and the legal import of the statement was not understood where sellers do not allege fraud, duress, mistake or undue influence; real estate broker acting as a dual agent has the duty to act with fairness to and with consideration for the interests of each principal; dual agent has the duty not to disclose to one principal confidential information given to the agent by the other principal; after the termination of the fiduciary agency relationship, the broker does not have a subsisting duty to the sellers of non-disclosure of confidential information where buyers, as parties in a civil suit against the sellers, used the affidavits of the associate real estate brokers to the benefit of the buyers in the civil suit; associate broker demonstrated incompetency where she improperly listed property as “sale pending” when there was neither a valid, enforceable contract nor a mutual agreement between the sellers and buyers in existence regarding the property; associate broker to pay $1,000 fine

53 DOS 03 DOS v. Clark – availing of license; disclosure of agency relationships; unearned commission; broker avails his license to salesperson where broker did not maintain, operate or supervise the operations of the office and did not supervise salespersons’ performance of regulated real estate brokerage activities; salesperson violates RPL §443 by failing to provide agency disclosure prior to entering into a listing agreement; broker violates 19 NYCRR §175.24(b) by failing to include explanation of the difference between an exclusive right to sell contract and that of an exclusive agency in the broker’s employment agreement; salespersons breached fiduciary duties of full and fair disclosure and of good faith and undivided loyalty when they intentionally withheld information from the principal of the fact that the potential purchaser was their daughter and when they gave the principal false information about the relationship between the salespersons and their daughter/buyer; breach of fiduciary duty of disclosure and affirmative misrepresentation of fact constitutes a fraudulent practice; salespersons deliberately and knowingly took unfair advantage of seller’s inferior expertise and lack of knowledge of market customs, bargaining power, and or available contractual options where seller, without question, listed the property for $150,000, sold the property for $133,500, and where 28 days thereafter salespersons’ daughter listed the property for $239,900; broker is not entitled to fee obtained as a result of wrongful conduct; restitution of $8,010 ordered; broker’s and salespersons’ licenses revoked

228 DOS 03 DOS v. Tucci – disclosure of agency relationships; dual agency; unauthorized practice of law; vicarious liability; fiduciary agency relationship was created both between the broker and the landlord and between the broker and the tenant; broker fails to provide agency disclosure form to tenant at any time during the employment; broker failed to make it clear to both parties that he was acting as an agent for both parties in violation of 19 NYCRR §175.7; broker engaged in the unauthorized practice of law by preparing a lease agreement; broker’s preparation of lease agreement appears to have been done as a service to the landlord and prospective tenant and not with the intention to circumvent either licensing law or judiciary law; fiduciary obligation of confidentiality continues after the termination of the fiduciary relationship; broker did not breach his duty of confidentiality by providing an affidavit in a civil suit between the landlord and tenant where the information provided was not confidential; broker’s co-partner is vicariously liable for the wrongful acts of the other co-partner committed within the scope of the partnership business as Partnership Law §24 prescribes that all parties are liable, jointly and severally, for the wrongful acts or omissions of the other co-partner committed within the scope of the partnership business; $2,500 fine

399 DOS 03 DOS v. Samaroo – disclosure of agency relationships; dual agency; broker fails to provide agency disclosure form to seller prior to entering into listing agreement; DOS fails to prove that broker acted as an improperly disclosed dual agent where evidence shows that buyers produced by broker were his sister and her husband but does not establish that broker was acting as the buyer’s agent; $1,000 fine

402 DOS 03 DOS v. Insinga – collateral estoppel; disclosure of agency relationships; deposits; broker fails to provide agency disclosure to potential lessee upon first substantive contact; broker receives client funds but fails to maintain an escrow account and to deposit client funds into such an account; broker’s license may be revoked or suspended or broker may be fined where broker retains the benefits of a tainted transaction after receiving notice of the salesperson’s misconduct; corporate broker is vicariously liable for the acts committed by its representative broker; DOS retains jurisdiction after license expiration during automatic renewal period; decision of small claims court arbitrator has no collateral estoppel effect on proceeding; broker’s license revoked; restitution in the amount of $1,450

741 DOS 03 DOS v. Mi Casa II Realty Corp. - accounting to client; deposits; disclosure of agency relationship; dual agency; broker failed to discuss or execute agency disclosure forms with client; broker represented both landlord and tenant in a regulated, real estate transaction acting as an undisclosed dual agent; broker deposited security deposit into his operating account, commingling trust funds; broker committed an act of conversion by using principle’s trust funds without principle’s knowledge or consent; broker failed to deliver security deposit to principal; broker breached fiduciary duty to account to client; broker ordered to refund $725.00 security deposit and $700.00 commission and ordered to pay $500.00 fine

771 DOS 03 DOS v. Camino - disclosure of agency relationships; unearned commissions; unlicensed activity; vicarious liability; broker violates RPL § 442-c by having unlicensed CEO of corporate broker show and negotiate the rental of real property; failure to provide agency disclosure form; failure to return unearned commission due to the unlicensed activity of corporate officer; corporate broker responsible for the acts committed by its representative broker and its unlicensed chief executive officer; $2,000.00 fine and refund of unearned commission in the amount of $1,000.00

772 DOS 03 DOS v. Home General Realty Corp. - accounting to client; deposits; disclosure of agency relationships; dual agency; DOS fails its burden of proof; DOS fails to prove broker acted as an undisclosed dual agent and that broker failed to cooperate with DOS investigation where numerous written demands were not delivered to broker and were returned to DOS; broker failed to present to and obtain a signed agency disclosure form from its principles; broker failed to maintain an escrow account; broker deposited trust funds into its operating account; broker gave deposits to a “mortgage loan officer” without verifying the individual’s identity and business status; broker was unable to obtain return of monies paid to “mortgage loan officer”; broker ordered to refund $26,391.00

835 DOS 03 DOS v. Carello - disclosure of agency relationships; DOS fails its burden of proof; DOS fails to present any evidence on the issue of whether broker presented an agency disclosure form to client; broker breached his fiduciary duty to his tenant/client when broker allowed his salesperson to show an apartment to the tenant/client with the knowledge that the landlord would not rent the apartment to the prospective tenant as the landlord would only allow members of immediate family to reside in his apartments and prospective tenant included sister-in-law; broker also represented landlord and demonstrated untrustworthiness and incompetency by accepting a listing and offering an apartment with a restriction which violated RPL §235-f; broker ordered to refund commission in the amount of $1,000.00 and pay a fine of $750.00

845 DOS 03 DOS v. Delia - disclosure of agency relationships; failure to cooperate with DOS investigation; failure to pay judgment; restitution; broker accepts deposits in two rental transactions and fails to refund deposits when prospective tenants fail to obtain lease with landlord; broker breaches fiduciary duty to tenant/client when he falsely tells tenant/client that he owns house to be rented; broker fails to pay judgment; broker lies to DOS’s investigator thereby breaching his duty to cooperate with DOS investigation; broker may be ordered to return monies he is not entitled to, including monies that have been transferred by the broker to a third party; broker ordered to refund deposits in the amount $1,600.00 and $1,300.00; as broker’s license lapsed and was not renewed, future application shall be acted upon as if broker’s license had been revoked effective as of date of decision

887 DOS 03 DOS v. Bravo - deposits; disclosure of agency relationships; failure to cooperate with DOS investigation; proper business practices; vicarious liability; broker failed to provide agency disclosure form; broker continued to do business under prior firm’s name after association with that firm had been terminated; broker failed to deposit monies received by her into an escrow account; broker failed to respond to DOS letters; broker demonstrated untrustworthiness and incompetency by failing to follow up on the availability of an apartment in a rental transaction; broker failed to give a cash refund of a deposit received in cash upon tenant’s demand therefore; corporate broker bound by the knowledge acquired by its representative broker; corporate broker’s license and representative broker’s license suspended for six months

1130 DOS 03 DOS v. Golding - disclosure of agency relationships; bad check; deposits; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; broker accepts earnest money deposit and deposits same into his general operating account, not maintaining an escrow account; broker fails to maintain records of transaction; charge dismissed when no evidence is presented with regards to whether broker presented an agency disclosure form; ALJ considers broker’s offer to refund deposit monies and that the offer was rebuffed by DOS investigator; broker’s license suspended for one year, broker to refund deposit in the sum of $1,000.00

811 DOS 04 DOS v. Owners’s Club Realty, Corp. - DOS fails its burden of proof; disclosure of agency relationships; unlicensed activity; DOS failed to prove that unlicensed person represented brokerage firm; DOS failed to prove that broker failed to provide agency disclosure form to consumer where form was presented and consumer refused to sign; DOS failed to prove that signature on agency disclosure form was a forgery; DOS failed to prove broker improperly recommended to buyer the employ of a certain attorney; DOS failed to prove brokerage agreement was unlawful without consideration, vague and indefinite and not in the best interest of the seller; brokerage agreement between buyer, seller and broker for the sale of seller’s property to a specified buyer is not a listing agreement within meaning of 19 NYCRR 175.24 and therefore it is not applicable; complaint dismissed

906 DOS 04 DOS v. Andrews - disclosure of agency relationships; duty to supervise sales associates; unearned commission; unlicensed activity; DOS fails its burden of proof; DOS fails to establish that two salespersons acted as salespersons on behalf of broker prior to being so licensed; DOS fails to prove that salespersons demanded an unearned commission where salespersons had an honest and good faith belief that they were entitled to a commission as a result of discussing the purchase of a home on several locations with the buyer and after having been asked by the seller to assist her in selling the house to the buyer; salesperson failed to provide agency disclosure in two rental transactions; charges relating to unlicensed activity and demanding an unearned commission are dismissed; two salespersons and two representative brokers are fined $500.00 each for failure to provide agency disclosure

515 DOS 05 DOS v. Duroseau - failure to appear at hearing; fraudulent business practices; deposits; commissions; unlicensed activity; disclosure of agency relationships; jurisdiction; DOS retains jurisdiction where alleged unlawful acts occurred during licensure and where after license expired licensee was eligible to automatically renew his license; salesperson engaged in fraudulent business practices by failing to refund deposit monies to a principal, illegally retaining deposit funds, retaining an illegal commission, failing to provide agency disclosure form to principal and by acting as an unlicensed real estate broker; DOS fails to prove non-cooperation with investigation where salesperson submitted two written responses to DOS’s requests; salesperson ordered to refund $2,300.00 plus interest, any future application for licensure will not be considered until refund made

583 DOS 05 DOS v. Scalise - attorneys; disclosure of agency relationships; unlicensed activity; broker-attorney failed to provide agency disclosure form; issues raised by the proof but not charged by the state include acting as an attorney and as a real estate broker in the same regulated real estate transaction and in the same legal document, not making clear as to what party the real estate broker is acting, acting as a real estate broker without informing the seller, demanding an unearned commission, and using legal process to collect an unearned commission; the tribunal is precluded from deciding issues not charged by DOS; broker fined $1,000.00

588 DOS 05 DOS v. Aharonov - disclosure of agency relationships; unlicensed activity; DOS fails its burden of proof; salesperson obtains two listings for residential premises at the time salesperson was not licensed; as salesperson was unlicensed, DOS fails to prove that salesperson failed to comply with RPL § 443 for failing to provide agency disclosure notice; salesperson’s license revoked

764 DOS 05 DOS v. Lalla – disclosure of agency relationships; bad checks; deposits; forgery; unlicensed activity; salesperson offered for sale property which was not listed with her, failed to provide agency disclosure forms, breached her fiduciary duties to her client by having buyer issue deposit checks to an entity controlled by her sons and not to the owner, failed to provide buyers with a copy of the purchase contract, issued refund checks drawn on accounts with insufficient funds, engaged in a fraudulent practice by telling co-workers she would give them money to cover a check she issued to replace a deposit and then failed to do so, conducted a transaction without the knowledge of a supervising broker, failed to refund purchaser’s deposit money in a cancelled transaction, issued a deposit check on an account with insufficient funds, held herself out and acted as a real estate salesperson when not licensed to do so, failed to cooperate with DOS’s investigation by failing to meet or provide requested documents, and engaged in a fraudulent practice by submitting a renewal application containing the forged signature of her sponsoring broker; salesperson’s license revoked and directed to refund $15,000.00 deposit.

818 DOS 05 DOS v. Cueto – disclosure of agency relationships; deposits; failure to pay judgment; signs; DOS failed to establish that broker failed to provide agency disclosure form to prospective buyer; broker deposited purchase deposit in her operating account, thereby commingling client funds; broker failed to pay small claims judgment even after unsuccessfully attempting to appeal it; broker failed to post a sign and maintain a definite place of business; broker fined $2,000.00 and license suspended until broker provides proof she has fully satisfied the judgment and has established a definite place of business and posted a sign thereon.

852 DOS 05 DOS v. Duncan – disclosure of agency relationships; sanctions; broker failed to provide prospective buyer with an agency relationship disclosure form; broker was offered the opportunity to resolve the matter by paying a fine of $350.00 which he did not accept; where an offer of settlement has been refused it is proper to impose a higher fine where the broker has subsequently been found guilty; broker fined $500.00.

863 DOS 05 DOS v. Goberdhan – disclosure of agency relationships; deposits; adjournments; proper business practices; failure to cooperate with DOS investigation; vicarious liability; broker’s request for an adjournment denied where broker appeared at hearing without counsel and for the first time requested an adjournment to obtain counsel; failure to make more timely request was nothing less than dilatory; corporate broker dissolved by proclamation due to nonpayment of taxes; broker failed to provide agency disclosure form to prospective buyer; broker failed to deal honestly with prospective buyer where broker introduced buyer to real property without disclosing that property was subject to foreclosure, had buyer make a deposit on the property without being able to inspect the interior and without knowing what the purchase price would be, told buyer that their money would be placed in an escrow account when no such account existed and by misleading buyer as to the need to have an attorney in the transaction; broker retained $20,000.00 cash deposit without depositing in an escrow account, broker having no such account; broker made numerous misstatements of fact to DOS’s investigator; broker failed to protect the interests of his client, the buyer, by failing to deposit $20,000.00 cash deposit in an escrow or by giving the money to the seller under circumstances in which the interests of the buyer were not properly protected; individual and corporate brokers’ licenses suspended for six months and additionally suspended until such time as broker provides proof of refunding the sum of $20,000.00 plus interest to buyer and corporate broker paying all franchise taxes and penalties due and being reinstated.

874 DOS 05 DOS v. Curanaj – disclosure of agency relationships; deposits; failure to cooperate with DOS investigation; signs; proper business practices; charge of failure to present purchaser with agency relationship disclosure form dismissed where evidence established only that purchaser did not recall whether she was presented with such a form; charge of failure to make a prompt refund is dismissed where purchaser did not make such a demand and when demand was made by DOS, it was complied with; broker failed to deposit client funds into segregated escrow account and commingled client’s funds with its own; broker submitted two applications for license renewal for corporate broker which was dissolved by proclamation and therefore nonexistent as a corporation at the time of renewal applications; broker failed to comply with DOS’s written request for information; broker failed to post and maintain a sign on its place of business; tribunal considers brokers’ prior history having previously admitted to mishandling and converting client funds, having failed to cooperate with an investigation and having consented to revocation of their licenses should they be found to have again violated Article 12-A or DOS’s regulations; brokers’ licenses revoked.

375 DOS 06 DOS v. Linsey- disclosure of agency relationships; deposits; proper business practices; broker failed to provide agency disclosure to clients in two separate transactions; broker held himself out and acted as a real estate broker under an unlicensed name; broker then failed to place and maintain deposit monies in an escrow account and then to timely return same to buyer after seller did not accept the buyer’s offer; broker failed to properly and accurately market the property and failed to act to the best advantage to its principal when he knew that his client’s circumstances demanded a quick sale of the property; broker’s license revoked

517 DOS 06 DOS v. Holt- disclosure of agency relationships; salesperson failed to provide buyer with agency disclosure form and did not otherwise disclose to him who she represented; salesperson failed to advise buyer of minimum seller requirements in purchase of co-op apartment even though she was aware of same; salesperson failed to deal honestly with buyer by failing to disclose minimum seller requirements causing buyer to suffer pecuniary losses in making mortgage application and paying retainer to his attorney; salesperson’s license suspended for one year

719 DOS 06 DOS v. Gabelli Realty LLC- duty to disclose agency relationships; settlements; at the time of taking a listing, broker had homeowner sign an agency relationship disclosure form on which the broker checked as the applicable relationship both that the broker was the seller’s agent and an agent of the buyer; broker did not give the homeowner copies of the disclosure documents at the time of signing but rather mailed them to the seller days later; broker was offered the opportunity to resolve the matter by paying a fine of $700.00 but refused the offer; thereafter, broker faxed an altered copy of the disclosure form to DOS’s investigator, having removed the check mark next to the language “an agent of the buyer/tenant;” thereafter, broker was offered an additional opportunity to resolve the matter by signing a consent order admitting the charges and paying a fine of $1,000.00; it is clear that broker was aware of the wrongfulness of his misconduct as demonstrated by his obvious attempt to mislead DOS by submitting to it an altered copy of the disclosure statement; broker fined $2,000.00

745 DOS 06 DOS v. Albarracin- disclosure of agency relationships; failure to appear at hearing; settlements; ex parte hearing may proceed upon proof of proper service; salesperson failed to provide agency disclosure form to either landlord or tenant when showing a one family house for rent to tenant; salesperson offered the opportunity to resolve the matter by paying a fine of $700.00 but refused; salesperson further provided the opportunity to resolve the matter by admitting to the allegations in the complaint and paying a fine of $1,000.00 and did not accept that offer; proper for tribunal to impose a fine higher than that which was asked for in the settlement offer; salesperson fined $2,000.00

874 DOS 06 Matter of Li- prior misconduct; disclosure of agency relationships; applicant applied for renewal of her license as a real estate salesperson for license which had expired one year prior thereto; DOS notified applicant that it proposed to deny the application because of facts and circumstances attendant to a prior investigation; salesperson demonstrated gross untrustworthiness when she took possession of a commission check due to her prior broker, failed to deliver the check to the prior broker, lied to the broker about the status of the transaction and subsequently tried to extort a higher share of the commission than that to which she was entitled; salesperson’s conduct is not excused or mitigated by her claim that she misplaced the check since she should have brought the check directly to her former broker as soon as she received it; salesperson prepared agency relationship disclosure form which she presented to the buyer but failed to indicated in the appropriate space whether she and her broker were representing the seller or the buyer; application for renewal of her license as a real estate salesperson denied

1008 DOS 06 Matter of Gold Star Homes – failure to provide agency disclosure, net listing, duty to supervise, allow unlicensed activity, unauthorized alteration of documents, refusal to release client from improper listing, failure to cooperate with DOS, egregious violation, revocation

787 DOS 07 Matter of Cruz- Failure to provide RPL§443 agency disclosures to seller and to buyer; salesperson receipt of commission in violation of RPL§442-a; $500 Fine and restitution of commission to broker

1940 DOS 07 Matter of Conde- salesperson; failure to provide agency disclosure form; failure to execute consent order; $1,000 fine

2050 DOS 07 Matter of Iaboni- erroneous agency disclosure form; unearned commission; $1,000 fine and refund

463 DOS 08 Matter of Fraser – broker; breach of fiduciary duty; use of form not in compliance with NYCRR 175.24; violation of 175.4 dismissal of charge of listing at price far less than fair market value, and failure to disclose licensee status; failure to supply agency disclosure; $1,500 fine

869 DOS 08 Matter of Pitts – broker; false claim of being member of bar; availing of license; failure of proof re: RPL §443 disclosure form; failure of proof of no escrow account; no jurisdiction over unlicensed individuals; revocation and fine of $5,775 with interest if reapply

870 DOS 08 Matter of David – salesperson; advertising on Craig’s List without broker consent; dismissal, as was office policy to do so and no showing of requirement of prior knowledge of broker; misrepresentation of rent in advertisement; improper direct receipt by salesperson (RPL 442-a); failure to use escrow account (RPL 175.1); unlicensed name (RPL §441[1][a]); revocation; no reapplication unless refund $300 plus interest

995 DOS 08 Matter of Island Associates – broker; incompetency in collection of commission not payable by seller; repayment under advice of counsel; dismissal of 175.7 as two separate transactions involved; false testimony and failure to cooperate; incompetency in drafting commission bill which failed to state to whom it was directed; $6,000 fine by deadline or 6-month suspension until paid

1019 DOS 08 Matter of Casanova – broker; failure to provide RPL 443 agency disclosure (pleadings conformed to the proof); selling broker not responsible for providing copy of listing agreement 175.7; dismissal of charge of receipt of commission in excess of agreed commission under claim of oral modification; dismissal of charge of improper commission from unlicensed party RPL 441; unlicensed salesperson; forfeiture of commission; suspension; fine of $500; broker 4-month suspension and refund of $6,420 with interest

1177 DOS 08 Matter of Menesville – broker; not qualified under RPL 440-a as not citizen or lawful alien; 175.7 failure to make clear and not accept compensation from more than one party without consent; revocation; no reapplication until refund $2,356.50 plus interest

1183 DOS 08 Matter of Taylor – broker; failure to identify ownership interest in listing (175.6); dishonest and misleading advertising (RPL 441-c); failure to provide property condition disclosure statement and advise of rights (RPL 462 and RPL 466); revocation and no reapply until refund $4,000 with interest

1223 DOS 08 Matter of Scott – broker; failure to provide RPL 443 disclosure; misconduct in delaying possession of apartment constitutes grounds to forfeit commission; improper withholding of deposit refund; 6-month suspension and refund $2,115 deposit plus interest

1256 DOS 08 Matter of Saransky – salesperson; failure to obtain RPL 443 disclosure; failure to pay $750 fine per “plea form;” fine of $1,500 by deadline or suspension for 3 months after pay fine

1434 DOS 08 Matter of Zackson – broker; property management; failure to provide RPL 443 agency disclosure; issue check with insufficient funds; bad checks not reimbursed; failure to account (175.2); failure to cooperate; revocation

1462 DOS 08 Matter of Karl – home inspection; referral fees; failure to disclose affiliation; subcontracting without notice; $400 restitution and revocation

88 DOS 09 Matter of Mekawy – salesperson; unlicensed name; agency disclosure; $500 fine

91 DOS 09 Matter of ERA Big Apple REALTORS – broker; predatory lending transaction; undisclosed dual agency; breach of fiduciary duties; pressured to pay fee to mortgage broker; revocation of agent; 3-month suspension of broker

189 DOS 09 Matter of Winzone Realty – broker; agency disclosure; listing agreement without 175.24 definition of exclusive listings; failure to cooperate; salesperson seeking direct compensation; dishonest completion of forms; notice of mechanic’s lien; revocation

220 DOS 09 Matter of Chevalier – salesperson; agency disclosure; deposit of fee in personal account; revocation

301 DOS 09 Matter of Skepple – salesperson; agency disclosure; improper direct receipt of commission from other broker RPL §442-a; revocation

444 DOS 09 Matter of Lewis – failure to provide agency disclosure; failure to cooperate with DOS; $2,000 fine

527 DOS 09 Matter of Burshtein – failure to provide agency disclosure; commission from other than broker; failure to cooperate with DOS; failure to supervise; dismissal

583 DOS 09 Matter of Hillaire – failure to maintain escrow account; failure to provide agency disclosure; using unlicensed name; failure to cooperate with DOS; $1,000 fine and refund $480 plus interest

584 DOS 09 Matter of Sucuzhanay – failure to provide agency disclosure; fraudulent transaction; complaint dismissed

619 DOS 09 Matter of Miller – failure to provide agency disclosure; undisclosed dual agency; self-dealing; breach of fiduciary duties; commission claim from other than broker; failure to supervise; complaint dismissed

640 DOS 09 Matter of Landetta – breach of fiduciary duties; unearned commission; failure to provide agency disclosure; unlicensed activity; failure to maintain escrow account; failure to cooperate with DOS; escrow account charge dismissed; $3,000 fine and refund of $300 plus interest

675 DOS 09 Matter of Goldberg – breach of fiduciary duty; incorrect agency disclosure; fraud; provide false information to DOS; 3-month suspension and refund $10,475 plus interest

767 DOS 09 Matter of Mahoney – agency disclosure; breach of fiduciary duty; insufficient evidence that licensee removed items prior to closing; $500

791 DOS 09 Matter of Pierre-Louis – failure to return deposit; agency disclosure; failure to supervise; dismissal; suspension until refund $10,010 plus interest

902 DOS 09 Matter of Novelty Realty – salesperson, agency disclosure, unearned commission; fraudulent short sale; failure to supervise; failure to cooperate; revocation

1104 DOS 09 Matter of Rossi – broker; agency disclosure; accept deposit without authority, vacate business premises without notice to DOS; held out as broker associated with unrelated broker; failure to maintain definite place of business; revocation and no relicensure until repay of deposits with interest

1225 DOS 09 Matter of Aaron – agency disclosure; vacated licensed address without notifying DOH RPL §441-a[3]; relocation without DOS approval; 19 NYCRR (175.20[d]); held out as associate with other firm without license; $250 fine or 3-month suspension

38 DOS APP 09 Matter of Sarasky – failure to implement prior consent order; ALJ fine $1,500; appeal; request to reopen; medical evidence does not establish inability to request adjournment; failure to present agency disclosure form; failure to pay consent order does not establish public harm; application for extension of time to pay; only one violation sustained; $700 fine

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