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14. Dismissal of Charges Due to Laches

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

269 DOS 96, Matter of DOS v. Logan - blockbusting; laches; licensee’s attempt to induce homeowners to list their property for sale by stating that homeowners could not be assured that in a few months they would receive as much for their home as they presently could because black persons were moving into the neighborhood constituted blockbusting; homeowners and community activist could act as private testers; DOS does not have to establish that homeowner relied on representations of licensee to establish violation of blockbusting; to establish defense of laches, respondent must show substantial prejudice arising out of a delay in the hearing by establishing that the delay significantly and irreparably handicapped the preparation of a defense; future deterrence of an extremely serious act requires the imposition of a substantial penalty; six (6) month license suspension

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

2 DOS 09 Matter of Shane – dismissal of charge of breach of fiduciary duty by misleading as to duration of listing; denial of motion to conform pleading to the proof to change overpricing of listing; doing business under unlicensed name RPL 441(1)(a); no misrepresentation to public; attorney advice in connection with dissolution; reprimand

143 DOS 09 Matter of Sebastian – broker; dismissal of charge of wrongful procurement of exclusive agency agreement; backdating documents §175.12; duplicate original documents; unearned fee; obligation to confirm whether there was existing buyer representation agreement; $1,000 fine; $2,000 fine for untrustworthy conduct in failing to confirm existence of buyer agency and subjecting client to unearned commission; restitution of judgment by confession

190 DOS 09 Matter of Coyle – appraiser; failure to meet USPAP; electronic signature; credible testimony that former employee affixed electronic signature without permission; dismissal

261 DOS 09 Matter of Magro—salesperson; CE; withdrawal of prior decision; revocation withdrawn nunc pro tunc

264 DOS 09 Matter of Binder – dismissal of charge of unauthorized advertisement; apparent agency

396 DOS 09 Matter of Lo, salesperson; mistake regarding exemption; complaint dismissed

424 DOS 09 Matter of Saraceno – appraiser; condition of premises; inconsistency in testimony; inherent unlikeliness of complainant testimony; complaint dismissed

1174 DOS 09 Matter of Folan – C&D; credible testimony re: procedure; complaint dismissed

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