28. Inadvertent Violation

43 DOS 92 Matter of Dos v. Slobodski - inadvertent use of old stationery after change of association - reprimand

92 DOS 92 Matter of DOS v. Active Home Sales -inadvertent failure to cull C&D list names from mailing list - reprimand

95 DOS 92 Matter of DOS v. Laffey - Penny Saver mistakenly distributed in n/s/o area - any n/s/o violation is serious $150 fine or 1-month suspension

155 DOS 92 Matter of Estates Town & Country - ad agency omits broker's name and phone number from newspaper ad (19 NYCRR §175.25[a]) - reprimand

157 DOS 92 Matter of Sutton - salesperson arranged for advertising postcards which identified her as being a "broker" (rather than a salesperson) and misstated her individually licensed broker as being a corporation; third party mailed without licensee's inspecting cards; broker guilty of incompetency (failure to supervise) but not operating without being licensed; no proof of broker knowledge or retention of benefits; salesperson guilty of incompetency

5 DOS 93 Matter of Cruz - salesperson trainee never worked in real estate brokerage; did only what broker said to do; conduct occurred shortly after commencement of employment; sales trainee cooperated with DOS investigation; Licensing Services recommends only reprimand; ALJ concurs

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

103 DOS 93 Matter of Cipriani Lewis - individually licensed broker fails to obtain associate broker's license when acting under the name of the corporation; must get relicensed as associate broker, can't merely file salesperson's change of association form; pleadings amended to conform to the proof; reprimand

135 DOS 93 Matter of Graham - (related case settled - CRC #276 [Knobel]) payment of commission to salesperson not associated with broker violates RPL §§442 and 442-c and 19 NYCRR §175.13; sales associate arranges payment via another broker due to fear that former broker would not pay her; absence of harm to public; salesperson cannot be officer of licensee corporation; DOS failure to prove that sales associate of one firm, who was corporate officer of another firm, was also licensed as a sales associate of that firm

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

134 DOS 93 Matter of DOS v. Frantz - individually licensed broker fails to obtain an associate broker's license when affiliated with corporate broker; sponsoring broker fined $250; mitigating circumstances include lack of harm to public and inadvertent violation; reprimand to "associate broker"

136 DOS 93 Matter of DOS v. McCarthy - individually licensed broker fails to obtain an associate broker's license when affiliated with corporate broker; sponsoring broker fined $250; mitigating circumstances include lack of harm to public and inadvertent violation; reprimand to associate broker; consolidated separate complaint where common question of law and fact and would serve the interests of justice and administrative economy

150 DOS 93 Matter of DOS v. Kirkman - charge of listing rental without authorization (175.10) dismissed; where relied upon (mis)representation of claimed manager and broker acting on a similar representation, had previously obtained tenants without incident

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

45 DOS 94 Matter of DOS v. Sturdevant - failure to prove "availing," as a necessary element is lack of supervision; uncharged misconduct (regarding unlicensed name and escrow funds) was not fully litigated and is not grounds for discipline; accordingly, do not reach issue of reliance upon advice of counsel

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

99 DOS 94 Matter of DOS v. Burgstrom - individually licensed broker who conducts business under name of a licensed corporate broker must have affiliated license; without associate broker license, such conduct is unlicensed activity; inadvertent violation without any intent to circumvent licensing law; reprimand

19 DOS 98 Matter of DOS v. Klingelsmith - proof of qualifying experience; inadvertent violation; licensee obtains renewal of license without complying with mandatory continuing education requirements; non-compliance is inadvertent where licensee reasonably relies upon erroneous information; licensee reprimanded but license not suspended or revoked where licensee reasonably relied upon erroneous information and subsequently completed the mandatory continuing education courses

6 DOS 07 Matter of Kent – cease-and-desist, previous business in Nassau Co., unaware of c&d list in Queens, reprimand

11 DOS 07 Matter of Saraceno – continuing education, inadvertent non-compliance, exigent circumstances, dismissal

21 DOS 07 Matter of Geoghan – appraiser, continuing education, inadvertent violation, opportunity to settle, no authority to impose fine, reprimand

22 DOS 07 Matter of Marshall – appraiser, continuing education, inadvertent violation, opportunity to settle, no authority to impose fine, reprimand

24 DOS 07 Matter of Sergio – appraiser, continuing education, no reasonable explanation of failure to take course as soon as learned of requirement, 2-month suspension

128 DOS 07 Matter of Martin- broker, license renewal, prior misconduct, inadvertent cease and desist violation; commission checks written after suspension, but no requirement to be licensed in order to write checks; inadvertent violation of continuing education requirement due to negligent signing of application; renewal granted

255 DOS 08 Matter of Shamalov – appraiser assistant; continuing education; mistake; 7-hour USPAP update; 30 days to complete course or suspension

397 DOS 08 Matter of Ekpo – appraiser assistant; continuing education; misunderstanding of requirement of USPAP update; 30-day opportunity to take course or suspension

431 DOS 08 Matter of Seiderer – appraiser; continuing education; clerical error; inadvertent lack of completion and prompt completion; reprimand

449 DOS 08 Matter of Trotman – appraiser assistant; continuing education; false statement; misunderstanding; one-month suspension

846 DOS 08 Matter of Hoskins – broker; continuing education; hardship; reprimanded

854 DOS 08 Matter of Lippolis – appraiser assistant; continuing education; misunderstanding; completion upon discovering deficiency; reprimanded

1504 DOS 08 Matter of Martin – appraiser assistance; CE; failure to complete; mitigation; good faith belief that ethics course interchangeable with USPAP course; reprimand

64 DOS 09 Matter of Minor – salesperson; CE; mistake; hardship; $250 fine

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