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15. Deposits

48 DOS 91 Matter of DOS v. Barmonde - broker was both purchaser and agent of seller. Failed to make required cash deposit (merely placed check in file, which was never negotiated). Violation of 19 NYCRR §175.1 (deposit "as promptly as practicable") which means as soon as broker can be reasonably expected to get to the bank - absent demonstrated impediment would be at the latest the start of the next business day. [Note that as a matter of enforcement policy DOS' Division of Licensing Services apparently permits up to 3 business days for the deposit to be made]. The contract governs the time when the deposit is to be provided (e.g. with offer, upon acceptance, 10 days after acceptance, etc.)

106 DOS 91 Matter of DOS v. Annie & Nora Realty -commingling of funds prohibited by 19 NYCRR 175.1 (no separate bank account for deposit of trust funds)

4 DOS 92 Matter of DOS v. DuBois - failure to disclose purchaser did not submit down payment and lacked ability to perform, as well as unauthorized practice of law in drafting deposit clause (see also DuBois v. McDade, 173 A.D.2d 1092 - question of fact whether purchaser was "ready, willing and able")

Opinion Letter 92-9 (Lynda G. Sartorio) - Putnam County MLS form providing for the deposit of down payment in escrow and its assignment to pay brokerage commission. Ruled improper as not an assignment of future interests of the seller, but of future rights that do not in fact exist

Case #194 Matter of DOS v. Century 21 Deidrich, Consent Order - refusal to comply with seller's direction to transfer deposit, when purchasers and sellers terminated agreement; utilization of gratuitous third party beneficiary agreement; $1,000 fine

Case #269 Matter of DOS v. O'Brien, Consent Order - failure to deposit check in escrow account; commingling funds, restitution, 3-month suspension; $4,500 fine

122 DOS 92 Matter of DOS v. Johnson - failure to maintain escrow account (9 NYCRR 175.1) $500 fine or 3-month suspension

123 DOS 92 Matter of DOS v. Lopez - failure to place deposits in escrow (175.1); failure to account for deposits when leases not consummated; failure to render proper accounts (175.2); revocation

156 DOS 92 Matter of Gotshall - landlord not advised of payment, which tenant thought was rental payment but broker kept as additional fee for assisting in securing cooperative's approval of subtenancy

158 DOS 92 Matter of Miles - failure to return deposit when proposed rental not effectuated

6 DOS 93 Matter of Cornell Associates Realty - buyer misled regarding refundability of deposits

CRC #268 Matter of DOS v. Nothnagle, Consent Order - failure to ascertain if buyer made deposits and failure to advise seller of such failure - $1,500 fine; 1-month suspension

CRC #228 Matter of DOS v. Goblet, Consent Order -conversion of deposit as unearned commission and failure to obey seller client's instruction to return to buyer - restitution and surrender of all broker's licenses

CRC #253 (286, 273) Matter of DOS v. Gena DiDonato, Consent Order - allowed conversion of deposit

CRC #333 Matter of DOS v. Warwick, Consent Order -failure to promptly account, restitution and $2,500 fine

19 DOS 93 DOS v. Seplow - "double agent" converts deposit and fails to disclose relevant information - restitution as prerequisite to re-licensure; charges of unauthorized practice of law and retention of unearned commission dismissed

51 DOS 93 Matter of DOS v. Florida Connection -consolidated hearings; broker fails to supervise sales associate and fails to use separate escrow account for deposits; representative broker had knowledge - both representative broker and firm failed to supervise

58 DOS 93 Matter of DOS v. Jemmott - failure to maintain escrow accounts and to refund deposit; failure to supply records requested in investigation

60 DOS 93 Matter of DOS v. Bon Chateau Realty - no failure to maintain escrow account where no client funds on deposit; may maintain un-negotiated check "in escrow" in accordance with agreement of parties; slight variation between licensed name and name utilized in business; company responsible for actions of representative broker

86 DOS 93 Matter of DOS v. Winograd - undisclosed dual agent for tenant and subtenant; failure to provide copy of sublease violates 19 NYCRR §175.11 no suspension of broker who has no knowledge at time of event or retention of proceeds, but liability for own misconduct; refund unearned commission

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 preview 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

Opinion Letter 93-22 (Rosetta Cole) - broker cannot retain portion of tenant's deposit where listed apartment is taken off the market while rental application is pending; unearned commission

Opinion Letter 93-33 (Dailey) - rules regarding escrow deposits: (1) after rejection of pending offer, seller's agent must return deposit to buyer but buyer's agent could retain in escrow as prospective deposit for another purchase offer; (2) listing broker should deposit the monies in escrow pending seller's acceptance, not hold the check pending acceptance; and (3) unless seller has instructed listing broker to only forward offers accompanied by deposits, the listing broker should not refuse to present an offer without a deposit

128 DOS 93 Matter of DOS v. Vuksanaj - motion to conform pleadings to proof granted where (i) additional evidence wouldn't have been presented if the charge had been stated in the complaint and (ii) issue was actually litigated and was within the "broad framework of the pleadings"; broker's authorization to execute lease on behalf of landlord must be in writing to be valid (G.O.L. §5-703); no commission earned on void lease (due to lack of written authority for broker to sign for landlord); broker is undisclosed "double agent" - thus "fails to make clear" for which party he is acting (175.7); broker is not "managing agent" under NYC Rent Stabilization Code unless (i) broker has ownership or financial interest in property or (ii) performs managerial duties; separate escrow account (§175.1) not required when broker is not holding escrowed funds; holding funds overnight does not trigger requirement for escrow account (returned next day upon demand); unlicensed name used in commission agreement but lack of intent to mislead considered in mitigation; restitution of unearned commission

131 DOS 93 Matter of Sitterly - consolidate separate complaints where common questions of law and fact would serve the interests of justice and administrative economy; contracts are presumed to express parties' intention and effect is given to their plain words; broker can rely upon deposit clause providing for funds to be maintained in escrow or until mutual agreement of the parties; ALJ does not consider uncharged claim of use of form contract with mutually inconsistent provisions; unlicensed name (addition of franchiser's name to the licensed name) violation mitigated by absence of harm to public; reprimand and discontinue use of licensed name or obtain licensure of franchisee name; corporate broker vicariously liable for acts of representative broker

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

122 DOS 93 Matter of DOS v. Century 21 All the Best - upholds use of MLS form agreement - form not required to fully describe services or advice regarding agency issues and risk of subagency; broker not required to verify property ownership and can enter into valid agreement with one co-owner (where prior to achievement of agency purpose broker lacks knowledge of joint ownership); failure of proof of fraud, breach of fiduciary duties and illegal retention of deposit or unearned commission

CRC #275 Matter of DOS v. Baker, Consent Order - misleading advertising; conversion of deposit monies; $2,500 fine and restitution of $20,000 under payment schedule enforced by confession of judgment

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

142 DOS 93 Matter of Tannenbaum - corporation which manages real property, collects rents and cooperative apartment building maintenance charges requires a license; unlicensed salesperson and unlicensed corporation precludes legitimate claim for brokerage fee; settlement of civil suit between tenant and unlicensed corporation is not a defense to charge of unlicensed activity; corporation's failure to pay judgment where individual respondent is not a party is not considered in disciplinary case against said individual; deposit monies should be returned, as no viable lease was entered into and no lawful brokerage commission could be claimed; restitution of entire deposit ordered (civil action settlement provided for return of $600 of $900), as no licensed real estate services were rendered; however, retention of deposit is not conversion or illegal retention of deposit monies, but is unlawful claim for commission by non-licensee; broker's failure to file termination of association notices violates RPL §441-a(5); respondent's cooperation during investigation considered, as is testimony that action resulted from lack of knowledge and negligent, not deliberate attempt to violate licensing law

40 DOS 94 Matter of DOS v. Hearl - attempt to surrender license while charges are pending does not divest DOS of jurisdiction; amendment of pleading to conform to the proof granted; no additional evidence would be forthcoming and essential issue was litigated; conversion of deposits warrants revocation; violation of 175.1 if balance in escrow account falls below aggregate deposits to be held

6 DOS 94 Matter of DOS v. Eagle Financial Services - motion to amend complaint; procedural due process; motion for severance; motion for stay of proceedings; adjournment; once issued, license is valid even if procured by fraud and voidable only in quasi-judicial proceeding; negotiating of mortgage loan requires real estate license; corporate licensee vicariously liable for conduct of unlicensed salesperson; failure to return and conversion of deposits

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

CRC #308 Matter of DOS v. Gomez, Consent Order - failure to place deposit in escrow account (175.1); conversion of rent, security deposit and commission; breach of fiduciary duty; restitution ($1,840) and $500 fine

53 DOS 94 Matter of DOS v. Bennett - DOS has jurisdiction to determine charges brought during 2-year period during which licensee may renew; DOS bears burden of proof; failure to establish that monies not paid were required deposit; licensee had right to raise claim of valid reason for not paying promissory note and have bona fideadjudication in court (even if loses in court) licensee not untrustworthy for failure to pay judgment where complainant failed to establish he was able to do so; licensee not untrustworthy because of discharging judgment in bankruptcy

CRC #327 Matter of DOS v. Sullivan, Consent Order - conversion of deposit; restitution of $6,500 plus 9% interest; fine of $1,000

CRC #375 Matter of DOS v. Murat, Consent Order - failure to hold deposit in escrow (19 NYCRR §175.1); failure to pay judgment; unauthorized practice of law by drafting binder without attorney approval clause (Judiciary Law §478); restitution of $2,800; fine of $2,500

CRC #586 Matter of DOS v. Sbarra, Consent Order - falsifying information in applying for mortgage; misrepresentation by omission of disqualifying information; invasion of client escrow accounts; commingling escrow deposits; forgery; 6-month suspension and fine of $10,000; upon timely payment, complaint in this matter and other matter (CRC #309) withdrawn and discontinued without prejudice

12 DOS 95 Matter of Morse - respondents' testimony which is inconsistent with documentary evidence is rejected in its entirety; salesperson failed to advise tenant of landlord's credit verification requests, causing them to lose half of their deposits; dual agency without informed consent not established, as licensee signature in space for landlord's was only intended to show who the broker was in the transaction; no failure to make escrow deposit where tenant knew money was to be delivered to landlord; failure of tenant's agent to advise of material information that in delivering deposit to landlord the tenant might lose money; use of unlicensed name; vicarious liability of broker for salesperson misconduct, broker may be fined even in absence of knowledge of salesperson's misconduct; restitution required of broker

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

15 DOS 95 Matter of Gafni - jurisdiction of DOS; deposit money continues to be property of prospective buyer until contract condition is achieved; unlawful retention is larceny; fraudulent practice of illegal retention of deposits, but no proof of criminal intent essential to prove fraud; failure of proof of retention of unlawful commission; vicarious liability of corporation for acts of representative broker; no authority to award damages; restitution with interest is required ($2,500; $3,000; $1,250 and $2,500)

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

35 DOS 95 Matter of Gooding - jurisdiction; amendment of complaint as of right (CPLR 3025[a]); second amendment of complaint by permission; plea of guilty with explanation; commingling of deposits in violation of 19 NYCRR §175.1; conversion of escrow funds; failure to render account is violation of 19 NYCRR §175.2; retention of unearned management fee; restitution of $28,233.85 plus interest at judgment rate

CRC #96-2297, Matter of DOS v. Singh - Consent Order - licensee improperly released security deposit to landlord; pay restitution of $600 plus interest; $500 fine

214 DOS 97 Matter of DOS v. Laymon - accounting to client; bad check; deposits; failure to pay judgments; proper business practices; jurisdiction; DOS retains jurisdiction after expiration of license (for failure to pay renewal fee) where acts occurred during licensure; violation of 19 NYCRR 175.1 by depositing clients’ funds into operating account and failing to maintain special bank account; violation of 19 NYCRR 175.2 for failing to account to client; broker engaged in fraudulent practices by accepting monies he was required to retain in escrow, depositing said monies into his operating account, failing to return same to its rightful owner and by purporting to make refunds by issuing bad checks; in light of broker’s financial inability to do so, failure to promptly satisfy judgments was not a demonstration of untrustworthiness; there was no violation of 19 NYCRR 175.3(b) where broker was not managing rental properties; real estate broker’s license revoked; reapplication for broker’s license conditioned upon proof of payment of restitution with interest and proof of satisfaction of judgment with interest

242 DOS 97 Matter of DOS v. Hinds - deposits; proper business practices; fraudulent practices; due process; exparte proceeding is proper where there is evidence of proper service of process; unlawful retention of deposit monies constitutes larceny; illegal exercise of right of ownership over principals’ funds is conversion; broker’s illegal retention of deposit monies of principals in four, separate real estate transactions is a fraudulent practice; broker’s failure to pay lawfully obtained judgments without a showing that he is unable to do so is a demonstration of untrustworthiness; license revocation; restitution with interest

247 DOS 97 Matter of DOS v. Abreu Realty - dual agency; deposits; fraudulent practice; vicarious liability; broker illegally acted as dual agent without full disclosure and informed consent of buyer and seller in a regulated real estate transaction; broker required to maintain separate, special bank account for the deposit of escrow funds (19 NYCRR 175.1); broker commingles client funds; refusal to return escrow funds constitutes larceny; illegal exercise of right of ownership over principal’s funds is conversion; broker’s failure to establish escrow account, commingling of client funds and illegal retention of escrow monies constitutes fraudulent practice; corporate broker is vicariously liable for the acts of a corporate officer where there is actual knowledge of the misconduct and after notice thereof, the corporate broker retains the benefits, profits and proceeds of the transaction; revocation of corporate broker’s license and representative broker’s license

CRC #95-0179 Matter of DOS v. Kabat, Consent Order - failure to place deposit into an escrow account; $1,000 fine

336 DOS 97 Matter of DOS v. Reyes - accounting to client; deposits; DOS fails its burden of proof; licensee violates 19 NYCRR 175.1 by depositing rents in the management of client’s business into his operating account; licensee fails to fully account for insurance proceeds and pays himself management fees well in excess of amount agreed to; DOS fails to prove licensee wrongfully closed client account, improperly monitored charges assessed in the operation of client’s apartment business and failed to pay insurance premiums; broker required to refund excess commissions earned plus interest and to fully account for monies claimed expended for maintenance and repair; broker’s license is suspended for 6 months and until such time as proof submitted of refund of excess commissions and accounting

359 DOS 97 Matter of DOS v. Lugo - deposits; adjournments; DOS fails its burden of proof; fraudulent practices; due process; ex parte hearing is permissible upon proof of proper notice of hearing; DOS fails its burden to prove commingling of funds; unlawful retention of deposit monies in two separate transactions is a fraudulent practice; affirmative misrepresentation of fact constitutes fraud; broker fails to pay judgment and failed to establish inability or other valid reason for failure to satisfy same; broker obtains and retains fee that was not related to the actual performance of some legitimate service by him on behalf of his principal; broker’s license revoked and restitution, with interest, directed for illegally obtained commissions and to satisfy judgment

360 DOS 97 Matter of DOS v. Swan - due process; deposits; fraudulent practices; ex parte hearing is permissible upon proof of proper notice of hearing; commingling broker’s and client’s funds violates 19 NYCRR 175.1; refusal to make refund of deposit upon failure of express condition of escrow is a fraudulent practice; failure to pay judgment without showing inability to do so demonstrates untrustworthiness; failure to keep promise to DOS investigator to pay judgment within 30 days demonstrates untrustworthiness; broker’s license revoked; re-application subject to approval of satisfactory payment of judgment in full

107 DOS 98 Matter of DOS v. Sosis - subject matter jurisdiction; due process; failure to appear at hearing; proper business practices; deposits; fraudulent practice; DOS fails its burden of proof; DOS has subject matter jurisdiction if at the time the disciplinary proceeding was commenced by proper service of a notice of hearing and complaint the party was (i) licensed to engage in regulated real estate activities, or (ii) an applicant for either a license or for the renewal of a license to engage in regulated real estate activities, or (iii) eligible to automatically renew the prior license under the two-year limitation provision of RPL §441(2); ex parte hearing is permissible upon proof of proper notice of hearing; DOS has subject matter jurisdiction where party was licensed at the time proceeding was commenced and, where at time of hearing, although not licensed was eligible to automatically apply to renew pursuant to RPL §441(2); licensee operated a real estate brokerage business under an unlicensed name; licensee unlawfully retains deposit funds after deposit monies were delivered on the condition that same were to be disbursed only on the principal’s consent and approval and said consent and approval was not given; licensee’s illegal exercise of right of ownership over his principal’s funds spawns conversion and constitutes a fraudulent practice; DOS fails its burden of proof to establish licensee failed to deposit trust funds in a segregated escrow account, engaged in fraud and changed business location without notice to DOS; restitution ordered in the amount of $1,900 plus interest, fine of $1,000 and any further application for licensure shall not be considered until applicant pays said fine and provides proof of payment of restitution

199 DOS 98 Matter of DOS v. Wheeler -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; deposits; proper business practices; ex parte hearing may proceed upon proof of proper service; broker improperly conducted business under name other than that on his licensed as evidenced by signs indicating a different name; broker fails to provide agency disclosure form to buyer prior to entering into agency relationship; broker failed to deliver duplicate original of instrument to client; broker commingled funds by depositing deposit check into operating account; untrustworthiness demonstrated by failure to return deposit when offer not accepted; failure to comply with DOS investigation; broker’s license revoked

275 DOS 98 Matter of DOS v. Citylife Realty, Inc. -- deposits; duties to supervise sales associates; vicarious liability; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; collection of rental commissions from tenants in spite of agreement of landlord that it would pay all commissions demonstrated untrustworthiness and incompetency; refusal to return deposit after landlord rejected tenant’s offer to rent demonstrates untrustworthiness and incompetency; broker may be required to return monies received which it is not entitled; broker has the duty to supervise its sales associates and is vicariously liable for their misconduct in making improper demands, except that unless broker received or retained any money in question or was aware of the wrongdoing at the time of its occurrence may only be penalized by fine and not suspension or revocation; representative broker fined $1,000; corporate broker fined $2,000 and required to refund deposit with interest

284 DOS 98 Matter of DOS v. Villafana -- proof of qualifying experience; applicant for license renewal failed to comply with continuing education requirements; mitigating circumstances exist where applicant was advised by DOS to do nothing until after the hearing was held; license revocation would be inequitable; broker’s license suspended until proof of compliance with continuing education requirements

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 #96-1753, 97-2738 Matter of DOS v. White, Consent Order -- broker commingled funds of his principal with his own funds in two separate matters; broker’s license suspended for 6 months; restitution of $600 plus 3 years interest; broker to attend 5-hour course regarding real estate brokerage responsibility to manage, administer and supervise his office in compliance with license law; broker shall not hold client trust funds nor accept payment of any commission or fee until commission or fee has been fully earned and upon proof of violation after hearing, broker’s license shall be revoked

CRC #98-0264 Matter of DOS v. Andolino, Consent Order -- broker transferred from their escrow account to their operating account a $1,000 escrow deposit and paid the funds to the contract vendor without notice to, or the consent of, their principal, the contract vendee; $500 fine and restitution in the amount of $1,000

172 DOS 98 Matter of DOS v. E.F. Realty Inc. -- due process; failure to appear at hearing; deposits; complaint dismissed as to licensee not properly served; DOS retains jurisdiction against party not a licensee at the time of the hearing if, when the proceeding was commenced the party was properly licensed, was an applicant for either a license or renewal, or was eligible to automatically renew under the two year provision of RPL §441(2); commission checks are properly deposited in broker’s operating account and may be immediately deposited for the protection of broker; depositing commission check in escrow account would constitute commingling funds; retention of two commissions after contractual, conditional payment provisions failed and demand for return of deposits is illegal; commission unlawfully retained may be ordered to be refunded; unlawfully retained commissions ordered refunded with interest

164 DOS 99 Matter of DOS v. Lando - subagent has same fiduciary responsibilities to seller as does listing broker; subagent fails to promptly advise seller that buyers failed to pay deposit and did not timely apply for a mortgage;subagent’s duty of disclosure must be made directly to seller, her attorney or her attorney in fact; three months license suspension

CRC #97-1956 Matter of DOS v. Ogunleye, Consent Order - failure to return security deposit constituted retained unearned commission; unlawfully prematurely holding self out as real estate salesperson; $500.00 fine

CRC #98-0504 Matter of DOS v. Freidman, Consent Order - salesperson ownership and operation of brokerage firm in violation of RPL §441-b(2); ownership of all voting shares of stock in violation of 19 NYCRR 175.22; commingling and converting funds; failure to supervise; voluntary surrender of licenses without right for application renewal for one year; restitution in the amount of $1,946.72 and $7,247.27

142 DOS 99 Matter of DOS v. Briggs - deposits; broker violates 19 NYCRR 175.1 by commingling funds and depositing escrow monies into operating account; $3,000.00 restitution and license revocation

189 DOS 99 Matter of DOS v. Naftal - listing agreements; deposits; unauthorized practice of law; vicarious liability; amendment of pleading to conform to the proof; improperly altering listing agreement without the consent or knowledge of principal to show the potential commission split with buyer’s broker to meet MLS requirements; preparing and submitting fraudulent MLS change notifications purporting to extend and alter listings; deposit of escrow funds into operating account; preparation of lease constitutes the unauthorized practice of law; pleadings may be amended to conform to the proof and encompass a charge not stated in the complaint where the issue has been fully litigated by the parties and is closely enough related to the stated charges that there is no surprise or prejudice to the respondent; continuing to offer properties for sale after preparation of forged listing extensions violates 19 NYCRR 175.10; DOS fails to establish violation of 19 NYCRR 175.12 for failure to provide copy of listing extension where extension was not authorized by principal; DOS fails to demonstrate demand for unearned commission where broker may have believed they were entitled to a commission; broker’s licenses suspended for one year and thereafter until such time as restitution in the amounts of $5,000.00 and $2,055.40 is made

232 DOS 99 Matter of DOS v. Livingston - due process; deposits; failure to cooperate with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; salesperson violates RPL §440-a by engaging in regulated real estate activity after the death of the broker with whom he was associated; salesperson does not violate 19 NYCRR 175.2, commingling deposits, as regulation does not apply to salespersons, however, such act constitutes untrustworthiness, incompetency and breach of fiduciary duty; issuance of check upon insufficient funds; failure to comply with DOS investigation by failure to provide requested documents which salesperson agreed he would provide; real estate salesperson’s license revoked

CRC #99-0126 Matter of DOS v. Harris, Consent Order - failing to deposit security deposit in escrow account violates 19 NYCRR §175.1; failure to inform principal that broker received foreclosure proceedings and that tenant had vacated the property constitutes breach of fiduciary duty of full disclosure; failure to immediately deposit monies into escrow account; breach of fiduciary duty of undivided loyalty by becoming a dual agent without proper disclosure and informed consent of the parties; $1,500.00 fine and restitution in the amount of $613.00

1 DOS 00 DOS v. Ogunleye - deposit; failure to appear at hearing; jurisdiction; unlicensed activity; ex parte hearing may proceed upon proper notice; DOS retains jurisdiction where the broker was licensed when (i) the disciplinary action was commenced and when the hearing was held, and (ii) when the broker was eligible to automatically renew the prior license; retention of deposit monies after principal demands refund constitutes a larceny and constitutes a fraudulent business practice; $1,000.00 fine

100 DOS 00 Matter of DOS v. Ricketts - deposits; failure to appear at hearing; failure to cooperate with DOS investigation; vicarious liability; ex parte hearing may proceed upon proof of proper notice; corporate broker is vicariously liable for the cognitional acts of its representative broker; broker violates 19 NYCRR §175.1 by placing purchase deposit in an account which was denominated neither as a special nor as an escrow account; failure to return deposit upon demand; broker commits fraudulent practice by accepting a binder deposit on the pretense that they would then convey the purchaser’s offer to the seller and then failing to convey the offer and failing to refund the deposit; delivering purchase deposit to seller prior to the execution of a contract for sale; sanction increased where broker agreed to execute consent order and failed to do so; corporate and representative broker’s license suspended for six months (from three months) and refund of purchase deposit in the amount of $4,000

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 #97-3463 Matter of DOS v. Pilato - conversion by retaining and failing to pay proceeds from the sale; failure to pay default judgment; $3,000.00 fine and broker ordered to satisfy default judgment in the amount of $67,500.00; license suspended until fine and judgment satisfied

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

7 DOS APP. 00 (189 DOS 99) Naftal v. DOS - altering co-brokerage information on a listing agreement; signing client’s name to change notifications reflecting extension agreements; submitting altered documents to DOS in the course of its investigation; unauthorized practice of law by preparing a lease between client and respective tenant; failure to deposit certain funds into an escrow account not mitigated nor excused because no party suffered financial harm as a result thereof; determination to suspend license for one year and order to refund the sum of $5,000.00 affirmed

377 DOS 00 Matter of DOS v. Poirier - deposits; failure to cooperate with DOS investigation; improperly transferring money out of an escrow account demonstrates untrustworthiness; providing false information to a DOS investigator is a failure to cooperate; broker may be required to return money received to which he is not entitled as a condition of retention of his license; entitlement to deposit subject of litigation; broker’s license revoked, no action on renewal until proof that broker has paid $25,000.00 deposit to one of the parties in accordance with the judgment in their lawsuit

379 DOS 00 DOS v. First United Realty, Inc. - deposits; failure to appear at hearing; vicarious liability; broker commingled trust funds and committed conversion by depositing escrow sums into his operating account and using to operate his brokerage business; proof that a check was dishonored proves incompetence; DOS fails to prove broker issued a bad check (failing to establish requisite knowledge and fraudulent intent); corporate real estate broker is charged with actual knowledge of violations of law and is vicariously liable for its representative broker’s cognizant misconduct as a corporate officer

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 #99-4117 Matter of DOS v. Rinker, Consent Order - deposits; failure to pay judgment; broker failed to pay judgment in a timely manner; broker commingled his principals escrow deposit with broker’s own funds; restitution in the amount of $1,000 plus interest, fine in the amount of $500.00, broker to complete 5 hour course on the law of agency and broker shall not accept or hold client funds

19 DOS APP 01 (481 DOS 01) Matter of Harris v. DOS - administrative appeal; record supports findings of fact and conclusions of law by Administrative Law Judge that broker engaged in a fraudulent business practice by failing to return a $950.00 deposit and failing to cooperate with DOS investigation; broker converted and commingled funds by failing to place deposit in a special escrow account; imposition of conditional suspension of real estate license and permanent revocation of notary license based upon same finding of facts creates an anomaly; judgment modified to conditionally suspend notary license along with real estate license until such time as $1,000.00 fine paid and deposit returned

358 DOS 01 DOS v. Gonzalez - deposits; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; salesperson demonstrates untrustworthiness by retaining as a commission a deposit which was paid toward the rental of an apartment which was not available upon the premise that the proposed tenant had not accepted another apartment which was purportedly, but not actually, available at terms acceptable to her; apartment application provided that commission is due at lease signing and does not provide that deposits may be forfeited; $500.00 fine and restitution of $800.00 deposit; since salesperson’s license lapsed, re-application for salespersons license or application for brokers license shall not be issued except upon payment of an additional fine of $250.00

481 DOS 01 DOS v. Harris - deposits; failure to appear at hearing; failure to cooperate with DOS investigation; fraudulent business practice; jurisdiction; notary public; unearned commissions; ex parte hearing may proceed against non-appearing respondent upon proof of proper service; in the absence of an agreement to the contrary, rental broker is entitled to compensation only after procuring a rental agreement between tenant and landlord; broker fails to deposit $950.00 lease deposit in special escrow account; broker commingled funds and converted deposit; broker failed to cooperate with DOS investigation by failing to truthfully answer all questions put to him, by providing DOS with misleading statements and by failing to provide requested documents; providing DOS with untrue and misleading statements indicates broker lacks sufficient honesty to be entrusted with duties of a notary public; DOS fails to prove that broker was unauthorized to show apartment; DOS retains jurisdiction after license expires where renewal may be had merely by submitting application and paying applicable fees; the claim of the right to retain and the retention of an unearned commission is a fraudulent business practice; broker receiving money to which he is not entitled may be required to return it; broker fined $1,000.00 and required to refund $950.00 deposit; broker’s commission as a notary public revoked; charges against non-appearing salesperson dismissed for DOS’s failure to provide proof

594 DOS 01 DOS v. Walker - deposits; failure to appear at hearing; failure to pay judgment; failure to cooperate with DOS investigation; notary public; proper business practices; broker commingles funds by placing deposits in operating account; broker allows escrow account to be overdrawn on numerous occasions; broker uses deposit for separate, unrelated business investment; broker fails to pay judgment without presenting an explanation or excuse for failure to pay judgment; broker fails to cooperate with DOS investigation by failing to respond to and comply with letter directing him to appear for a conference and to provide certain documents; broker fails to notify DOS of new address upon closing office; DOS fails to prove that salesperson improperly held herself out to be real estate broker associated with corporate broker, that the broker made misrepresentations to the purchasers regarding payments they were required to make toward the purchase, that some checks were returned for insufficient funds, that the broker failed to make certain required payments, that the broker properly failed to make certain other deposits and that the broker gave a postdated deposit check which could not be cashed due to insufficient funds; representative broker’s and corporate broker’s licenses revoked, return of deposits in the amount of $400.00 and $3,173.83 ordered with interest, civil judgment to be fully satisfied; salesperson fined $1,000.00 and notary commission suspended for four months

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

232 DOS 02 DOS v. Liberty Auction Properties, Ltd. - deposits; vicarious liability; res judicata; a judgment rendered in a civil action is not controlling over administrative hearing where actions seek different remedies, neither DOS nor the complaining witness in the administrative proceeding was a party to the civil suit, and the issues litigated in the administrative proceeding were not litigated in the civil action; broker failed to return deposit to buyer after buyer failed to complete sale for good cause and seller’s attorney directed broker to return deposit; seller’s subsequent claim for deposit as liquidated damages litigated in civil action by seller against broker for deposit; broker obtains judgment for deposit pursuant to terms of listing agreement entitling broker to retain deposit upon buyer default where the down payment did not exceed the amount of the commission; broker received deposit in the capacity of a stakeholder and deposit funds remained the property of the buyer upon mutual termination of the transaction by the parties and neither seller nor broker became entitled to the deposit; corporate real estate broker responsible for the cognitional acts of its representative real estate broker; broker to refund $25,000 deposit to buyer and pay $1,000 fine

357 DOS 02 Matter of DOS v. Elias - failure to appear at hearing; failure to pay judgment; proper business practices; deposits; DOS fails its burden of proof; restitution; ex parte hearing may proceed upon proof of proper service; respondent failed to fully satisfy a judgment obtained against him without showing that he was unable to do so; a rental broker is entitled to compensation only after procuring a rental agreement between tenant and landlord; retaining part or all of the deposit without obtaining a rental agreement demonstrates untrustworthiness and incompetency; restitution may be ordered as a condition to retention of the broker’s license where he has received money to which he is not entitled; unlawful for broker to operate real estate brokerage business at an address other than that which was stated on his application; broker operated his real estate business out of an address prior to obtaining a license for that address; DOS failed to prove that respondent commingled and converted deposits; real estate brokers license suspended for four months and an additional period of time until respondent proves he has paid the balance of the judgment

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

453 DOS 02 DOS v. Dodd – deposits; DOS fails its burden of proof; failure to appear at hearing; vicarious liability;ex parte hearing may proceed upon proof of proper service; broker breaches fiduciary duty to their seller client by accepting a purchase deposit less than that provided for in sales contract; commingling of deposits; broker allows escrow accounts to be overdrawn on various occasions; broker issues bad check from escrow account; DOS fails to establish when agency disclosure form was given and fails to establish violation of RPL §443; DOS fails to establish broker acted as dual agent; corporate broker responsible for acts of representative brokers; corporate and representative broker’s licenses revoked

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

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

972 DOS 02 DOS v. Elstein – deposits; DOS fails its burden of proof; proper business practices; unearned commission; broker refused prospective tenant’s demand for return of $200.00 deposit when repairs were not completed to apartment and a lease was not executed; broker illegally retained and converted deposit monies; DOS fails to establish that broker retained an unearned commission; broker ordered to refund $200.00 deposit and to pay $1,000.00 fine

314 DOS 03 DOS v. TBS Realty Corp. – deposits; unlicensed activity; broker fails to deposit trust funds into an escrow account and commingled client’s funds with funds of the real estate broker; broker permitted two persons not licensed under or associated with the broker to perform regulated, real estate activity on behalf of the broker; broker fined $3,000

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

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

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

960 DOS 03 DOS v. Vazquez - deposits; unlicensed activity; duty to supervise sales associate; failure to cooperate with DOS investigation; failure to pay judgment; sanction; broker fails to reply to DOS’s request for information; broker allows two individuals to work in association with brokerage without being properly licensed; broker fails to pay judgment; broker fails to return rental deposits in two transactions where the rental was not consummated; broker fails to supervise sales associate and is accountable for monies received by salesperson and unaccounted for; in setting penalty, it is proper to consider licensees were found to have availed themselves of improper licensed real estate salespersons and to have retained an unearned commission; corporate broker’s license and representative broker’s license revoked and brokers ordered to pay restitution in the amount $7,725.00 and judgment in the amount $740.37

1018 DOS 03 DOS v. Rasool - deposits; failure to appear at hearing; failure to cooperate with DOS investigation; hearing may proceed upon proof of proper service; broker failed to reply to DOS’s request for information; broker failed to turnover deposit upon client’s entitlement thereto; corporate broker’s license and representative broker’s license revoked

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

28 DOS 04 DOS v. Montolio - bad check; deposits; failure to cooperate with DOS investigation; broker issues bad check in attempt to refund commission in exchange for withdrawal of complaint; broker intended to induce DOS to renew his license under false pretenses claiming that complaint had been satisfactorily resolved; broker fails to provide documents requested by DOS; broker’s license suspended for one year, ordered to refund $1,300.00

646 DOS 04 DOS v. Harris - deposits; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; where purchase transaction dies, deposit monies retain status as escrow funds; broker must maintain deposit in his escrow account until either buyer and seller mutually agreed or there is a determination by a court of competent jurisdiction as to whom the money belongs; broker removes deposit from escrow as payment upon commission where small claims court determined that deposit was to be returned to purchaser; DOS fails to prove that broker failed to maintain records of his escrow account as 19 NYCRR 175.1 does not contain a specific requirement for the retention of such records and 19 NYCRR 175.23 does not refer to escrow account records; broker fined $1,000.00 and ordered to refund $500.00 with interest

1023 DOS 04 DOS v. Harris - administrative appeals; deposits; matter remanded from Secretary of State on appeal (22 DOS APP 04) for a new hearing from default decision

(646 DOS 04); where seller refused to comply with contract terms and purchaser canceled the transaction, requesting return of his $500.00 deposit, broker continued to hold earnest money deposit in his escrow account; deposit retained its status as escrow funds pending either agreement between buyer and seller or determination by a court of competent jurisdiction as to whom the money belonged; in a small claims action between buyer and seller, court determined that buyer was entitled to receive the deposit, nevertheless broker continued to hold deposit believing he needed the specific permission of the seller to release the funds; charge that broker failed to maintain records of his escrow account dismissed upon prior determination that Regulation 175.1 does not contain a specific requirement for the retention of such records; broker breached his fiduciary duties by not refunding deposit to buyer after small claims court determination of entitlement to deposit; broker reprimanded and ordered to refund $500.00 deposit to buyer

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

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.

851 DOS 05 DOS v. Jenkins – bad checks; deposits; failure to cooperate with DOS investigation; vicarious liability; broker failed to make refund of deposit money towards a rental of an apartment when the rental was not consummated; broker issued check drawn on her escrow account which was dishonored due to insufficient funds; broker failed to honor her agreement to make good on the dishonored checks; broker failed to cooperate with DOS investigation by failing to respond to DOS’s numerous telephone messages; broker may be required to return money to which it is not entitled; corporate broker bound by the knowledge acquired by and is responsible for the acts committed by it’s representative broker; corporate broker and individual broker fined $2,000.00 and ordered to refund $1,600.00.

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.

285 DOS 06 DOS v. Adewoyin- deposits; bad checks; broker deposited purchaser’s $5,000.00 deposit in an operating account and thereafter converted the funds to his own use due to divorce and illness; after sale terminated and parties agreed that deposit would be paid to seller, broker executed a promissory note to seller to repay the converted deposit and thereafter issued a bad check and defaulted on the promissory note; broker subsequently filed for bankruptcy protection under Chapter 13 naming seller as a creditor; corporate broker took no part in the misconduct and therefore charges against corporate broker are dismissed; broker’s license 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

975 DOS 06 DOS v. Ligon - failure to place deposit in escrow, unearned commission, failure to satisfy judgment retention of advance payment on commission not earned, rental never consummated

670 DOS 07 Matter of Shiamili- failure to pay commission and sales promotion to sales associate (Stowell v. Cuomo, 52 NY2d 208 [1981]); failure to pay judgments; failure to cooperate; $2000 fine and suspension until judgments paid

889 DOS 07 Matter of Lombardi- appraiser; preparation of two misleading reports in violation of USPAP; failure to cooperate charge dismissed as appraisers do not have duty to cooperate; appraiser license revoked

1517 DOS 07 Matter of Bizzari- Broker; fraud and breach of fiduciary duty re deposit; bad check; commingling (19 NYCRR §175.1) unauthorized demand for 50% down payment; fraud and misrepresentation as registered HUD agent; false statement that purchase would be owner-occupied; failure to disclose broker ownership interest in listed property (19 NYCRR 175.6); failure to deliver duplicate original (19 NYCRR 175.12); agency disclosure notice (RPL § 443[3][b]); use of unlicensed name (RPL § 440-a; 441 [1][a]); incompetency; revocation

1625 DOS 07 Matter of Harris- broker; unauthorized practice of law as to provisions of rider requiring legal expertise without attorney approval clause; unearned commission; commingling 175.1; untruthful testimony; $2000 fine and suspension until refunds $2500 deposit with interest

____DOS __ Matter of Dillion- no escrow account; summary suspension order

1856 DOS 07 Matter of Hansraj- fraudulent practices; revised contracts without seller consent; failure to disclose payments; unearned commissions; deposits; revocation

1895 DOS 07 Matter of Veksler- unlicensed corporation; deposits; disclosure form; dual agents; fraud; failure to maintain records; forgery; revocation

1918 DOS 07 Matter of Thomas- Salesperson; deposit of commission in own account; failure to cooperate; failure to notify of change of association; $500 fine before any application to renew

1955 DOS 07 Matter of Hannays- broker applicant; improper rental practices (security deposit, escrow account, commission); unlicensed name; dishonesty; fraud and misrepresentation with intent to injure; commingling funds; escrow account violation 19 NYCRR 195.1; credible respondent testimony re: lack of good faith by complainant; unlicensed brokerage activity; must refund $1,600 deposit and pay fine of $1,000 before consideration of application for brokerage license

1956 DOS 07 Matter of Martinez- broker and attorney; supervision due to escrow violation; unlicensed practice of real estate brokerage; availing notary public commission; unearned commissions; revocation

2207 DOS 07 Matter of Duboff- broker; license renewal; suspension from practice of law due to escrow account violation; absence of other known infarctions; character references; renewal granted

2237 DOS 07 Matter of Blanchard- broker; improper commission agreement with provided for payment without commission being conditioned upon landlord granting legal possession of leased property; unlicensed activity; incompetency for engaging in management business without license for that entity; unlawful retention of commission by unlicensed entity; failure to cooperate; refusal of opportunity to settle; six month suspension and future suspension until proof of restitution of commission paid to unlicensed entity

2268 DOS 07 Matter of Hinds- broker; escrow account violations; 175.1; breach of duty; license revoked; no consideration of reapplication until refund $25,400 with interest

2283 DOS 07 Matter of Gill- broker; unlicensed activity; failure to supervise; failure to refund deposit; failure to notify of change of association; salesperson failure to cooperate; fine of $1,000; broker fine of $300.

438 DOS 08 Matter of DeLorenzo – broker; dishonest as attorney; escrow fund violation (no loss of money); unlicensed name; 3-month suspension or until proper name

669 DOS 08 Matter of Friedman – salesperson; made unauthorized changes to the MLS listing; failure to schedule open houses and to post signs; prompt return of deposited check payable to broker; complaint dismissed

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

871 DOS 08 Matter of Rodriguez – broker; unlicensed salesperson; post dated check with insufficient funds; failure to maintain escrow account (175.1); unlicensed name (RPL §441[1][a]); relocation of office without approval (RPL §175.20[d]); 6-month suspension and refund $9,500 with interest

1485 DOS 08 Matter of Doty – broker; jurisdiction over expired licensee; requirement to maintain business records for three years §175.23(2); failure to refund deposit; relocation of offices without notice to DOS; revocation; no consideration of reapplication; refund $500 deposit plus interest

7 DOS 09 Matter of Furan – salesperson; unlicensed activity; breach of fiduciary duty; deposit and accounting; sua sponte amend pleadings to conform to proof; fraud; revocation; no reapplication unless restitution of $2,560 plus pay judgment with interest

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

237 DOS 09 Matter of Cheung – salesperson; unlicensed activity; direct receipt of deposits; revocation; restitution if reapply

360 DOS 09 Matter of Depass – associate broker; failure of proof of charge of failure to disclose prior business association and failure to cooperate; conduct as attorney is relevant to determining trustworthiness and competitiveness; amend pleading to conform to proof; failure by account; fraudulent mortgage transactions; sham to refinance; revocation

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

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

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

792 DOS 09 Matter of Leigh – escrow account; deposit; dismissal; failure to supervise

1051 DOS 09 Matter of Chuckran – salesperson; dismissal of charge of failure to return deposit; sua sponte amend pleading to conform to the proof, incompetency by misrepresenting “non-refundable fee” as deposit; $750 fine

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

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