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16. Due Process

22 DOS 94 Matter of DOS v. Leggio - improper service by mail on former, rather than last known business address; charge of acting as salesperson when not associated with a broker dismissed without prejudice

27 DOS 94 Matter of DOS v. Rivera - improper service by mail at last known business address where DOS records showed neither respondent was currently licensed and DOS records did contain respondents' residence addresses; due process here requires more than RPL §441-e(2); charges of unlicensed activity dismissed without prejudice

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

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

91 DOS 95 Matter of DOS v. RE MAX West, et al. - due process to assure fair notice; proof of certified mail creates presumption of delivery; duty of representative broker to assure proper licensure of salesperson, duty cannot be delegated, actual knowledge not required; associate broker status as salesperson, cannot serve as representative broker even if manages office; $500 fine

48 DOS 96 Matter of DOS v. May - Administrative hearing may proceed ex parte where there is evidence of proper service of notice of the place, time and purpose of the hearing; automatic stay in Chapter 11 Bankruptcy proceeding precludes imposition of monetary damages and order of restitution but does not preclude suspension or revocation of license; breach of management agreement constituted breach of fiduciary duties of reasonable care and skill and licensee disregard of its obligations and failure to cooperate with principal demonstrated untrustworthiness and incompetence; where DOS fails to establish evidence of allegations in complaint and respondent is not present at hearing, complaint cannot be amended to conform to the proof and charge as to that allegation is dismissed; two month suspension

224 DOS 96, Matter of DOS v. Hahn - Attorney; notary public; due process; administrative hearing may proceed ex parte where there is evidence of proper service of notice of the place, time and purpose of the hearing; State’s evidence which is not impugned, not improbable and not surprising or suspicious is conclusive; applicant’s failure to appear on application for reappointment as a notary public is deemed a withdrawal of the request for a hearing; trustworthiness and competence is presumed for practicing attorney and not required to be proved for licensure; attorney’s disbarment for professional misconduct has an adverse effect on public and rebuts presumption of trustworthiness and competence and may be considered in determining trustworthiness and competence; application for reappointment as notary public denied; broker’s license revoked

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

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

263 DOS 97 Matter of DOS v. Viking Realty, Ltd. - due process; jurisdiction; vicarious liability; ex parte proceeding may proceed where proper service made; proper service against corporate broker by certified mail to last known business address; improper service on a representative broker by certified mail to residence address; DOS has jurisdiction over party not licensed at the time of hearing when the party properly served is eligible to automatically renew the prior license under the two year limitation provision of RPL §441(2); Article 12 - B (Apartment Information Vendors) does not require licensure of employees of licensed vendor; charging a fee for residential apartment listing which is obsolete and available publicly without cost is fraudulent business practice; corporate broker may not retain the benefits, profits or proceeds of a transaction wrongfully negotiated; corporate broker not vicariously liable without actual knowledge of unlawful conduct; restitution of $125.00 plus interest; dismissal of allegations under Article 12-B and dismissal of claim against representative broker

266 DOS 97 Matter of DOS v. Cannon - due process; jurisdiction; vicarious liability; ex parte proceeding is proper where proper service is made; DOS has jurisdiction over a party where disciplinary action is commenced with service of notice of hearing during the two year duration of time a respondent is eligible to automatically apply to renew a prior real estate broker’s license under RPL §441(2); broker is not vicariously liable for misconduct of associated salesperson absent actual knowledge of misconduct; broker may not retain the benefits, profits or proceeds of a transaction wrongfully negotiated (rental of illegal apartment); broker not found to be untrustworthy where, upon learning of violation of law by associated salesperson, broker agreed to return of commission ($550.00) and refunded substantially all thereof ($450.00), failing only to pay balance owed because of a lack of funds; restitution of $100.00 plus interest

271 DOS 97 Matter of DOS v. Solomon - due process; cease and desistex parte hearing is proper upon properly served notice of hearing; broker demonstrated incompetency where he did not act wilfully but negligently solicited homeowner listed on cease and desist list in violation of 19 NYCRR 175.17(c)(1); broker having rejected settlement offer ($300.00), it is proper to impose a fine in a greater amount; $500.00 fine

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

276 DOS 97 Matter of DOS v. Safonte - due process; felony conviction; ex parte proceeding may proceed where proper service is made; DOS retains jurisdiction when disciplinary action is commenced by service of pleadings during the two year period when party is eligible to automatically apply for license renewal (RPL §441(2)); RPL §440(a) prohibits licensure as a real estate broker or real estate salesperson if person is convicted of felony for which the person has not subsequently obtained an executive pardon, certificate of good conduct or a certificate of relief from disabilities; guilty plea to conspiracy to commit arson and mail fraud (Class D felony) constitutes disqualifying felony

291 DOS 97 Matter of DOS v. Bukzin - proof of qualifying experience; material misstatement on application; due process; failure to appear at hearing; ex parte hearing is permissible upon proof of proper notice of hearing; salesperson obtained renewal of license by falsely indicating that she had complied with continuing education requirements of RPL §441(3)(a); license revoked

316 DOS 97 Matter of DOS v. Anderson - proof of qualifying experience; failure to cooperate with DOS investigation; due process; failure to appear at hearing; hearing may proceed ex parte where there is proof of proper notice of hearing; applicant fails to complete the required continuing education course; applicant’s refusal or failure to submit requested materials constitutes violation to cooperate (RPL §442-e(5)) where licensee has knowledge (actual or implied) of DOS’s request and refuses or fails to comply; DOS fails to prove respondent had actual or implied notice of DOS’s requests; salesperson’s license revoked

317 DOS 97 Matter of DOS v. Bhagwandin - due process; unlicensed activity; failure to appear at hearing; ex partehearing is permissible where there is evidence of proper notice of hearing; broker which has an unlicensed salesperson associated with him it is guilty of a misdemeanor; representative broker is obligated to supervise the activities of the corporation she is licensed to represent; representative broker is responsible for the unlicensed activities of unlicensed salesperson; $750 fine

328 DOS 97 Matter of DOS v. Marie Ward Realty, Inc. - duty to supervise sales associates; due process; failure to appear at hearing; ex parte hearing is permissible upon proof of proper notice of hearing; representative broker allows salesperson to engage in regulated transactions prior to notifying DOS of salesperson’s association with broker; salesperson was not licensed to engage in regulated transactions; representative real estate broker is liable for participation in or authorization of illegal acts; representative broker’s violations are imputed to corporate broker; lack of knowledge that salesperson was not properly licensed and brokerage office failure do not excuse representative broker; lack of reasonable excuse coupled with failure to appear indicate pattern of neglect; $1,000 fine

330 DOS 97 Matter of DOS v. Pinnola - due process; DOS fails its burden of proof; cooperation with DOS investigation; proof of qualifying experience; licensee fails to cooperate with DOS investigation where he does not respond to information request letter regarding continuing education requirements; DOS fails its burden of proof to establish licensee failed to meet his continuing education requirements where DOS failed to require proof of such completion be submitted with renewal application, licensee was not present at the hearing and DOS merely relied upon post-license issuance audit; tribunal considers fact that respondent may have been wrongfully licensed for a substantial period of time; salesperson’s license suspended until submits proof of satisfactory completion of continuing education requirement and further suspension for a period equal to the amount of time licensee improperly licensed plus two months

340 DOS 97 Matter of Nocera - prior misconduct; due process; automatic revocation upon felony conviction; applicant was convicted of Class D felony and subsequently granted certificate of relief from disabilities; applicant requested a hearing after notice of proposed denial of application; ex parte hearing is permissible upon proof of proper notice of hearing; applicant has the burden of proof to establish he is qualified to be licensed as a real estate salesperson; applicant is deemed to have withdrawn her request for hearing when after timely and proper notice of hearing she fails to appear; decision to deny application is final where more than 35 days have elapsed since applicant advised of proposed denial

352 DOS 97 Matter of DOS v. Schott - proof of qualifying experience; due process; DOS fails its burden of proof; DOS fails to establish applicant failed to complete the required continuing education courses where DOS did not require proof of such completion be submitted with the license application and where applicant failed to respond to audit or appear at hearing; applicant’s failure to respond to two DOS requests for information constitutes non-cooperation; tribunal considers fact that respondent may have been wrongfully licensed for a substantial period of time; license as a real estate salesperson suspended until such time as applicant submits satisfactory proof of completion of continuing education courses and further suspension for a period equal to amount of time improperly licensed plus 2 months

358 DOS 97 Matter of DOS v. John - improper business practices; due process; personal jurisdiction; ex partehearing is permissible upon proof of proper notice of hearing; single notice of hearing sent to two individual respondents at last known business address of only one fails to obtain personal jurisdiction over respondent to whom the notice was not sent; each respondent must be served with his or her own individual notice of hearing and complaint; failure by broker to file change of association form for new salesperson; $500 fine

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

362 DOS 97 Matter of DOS v. Calle - proof of qualifying experience; due process; failure to cooperate with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee’s failure to respond to education requirement audit letters constitutes failure to cooperate with DOS investigation; DOS fails to prove licensee’s lack of education requirement where licensee fails to answer audit letters and fails to appear at hearing; salesperson’s license is suspended until licensee presents satisfactory proof that he has complied with the continuing education requirements

368 DOS 97 Matter of DOS v. Flower - proof of qualifying experience; due process; ex parte hearing is permissible upon proof of proper notice of hearing; DOS fails its burden of proof; licensee fails to cooperate with DOS investigation where licensee fails or refuses to respond to audit letters and fails to attend requested meeting; DOS fails to meet its burden to establish licensee cannot fulfill continuing education requirement where licensee fails to respond to audit letters, fails to appear at requested meeting and fails to appear at hearing; salesperson’s license suspended until licensee presents proof of compliance with continuing education requirement

369 DOS 97 Matter of DOS v. Weimar - proof of qualifying experience; due process; cooperation with DOS investigation; DOS fails its burden of proof; failure to appear at hearing; material misstatement on application; exparte hearing is permissible upon proof of proper notice of hearing; DOS fails to establish licensee failed to cooperate with DOS investigation where licensee responded to audit letter indicating licensee failed to meet the education requirements and licensee thereafter failed to respond or attend meeting requested by DOS to establish of meeting educational requirements (meeting was superfluous and unreasonable as DOS knew from information supplied by licensee that she had not completed the continuing education requirements); salesperson’s license revoked

370 DOS 97 Matter of DOS v. Schepard - proof of qualifying experience; due process; failure to appear at hearing; license renewal issued notwithstanding that licensee indicated in renewal application and audit letter that she had not completed the mandatory education requirements; salesperson’s license revoked, decision rendered without prejudice to subsequent application for licensure upon compliance with educational standard requirements

374 DOS 97 Matter of DOS v. Gonzalez - proof of qualifying experience; due process; failure to appear at hearing; material misstatement on application; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to meet continuing education requirements; issue of non-cooperation with investigation is moot; real estate salesperson’s license is revoked

379 DOS 97 Matter of DOS v. Moretto - due process; failure to appear at hearing; proof of qualifying experience; DOS fails its burden of proof; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where refuses or fails to respond to audit letter; DOS fails its burden of proof to establish non-fulfillment of continuing education requirement where licensee fails to respond to audit letter, fails to attend requested meeting and fails to appear at hearing; salesperson’s license suspended until licensee presents proof of compliance with continuing education requirement

380 DOS 97 Matter of DOS v. Fukutani - due process; failure to appear at hearing; cooperation with DOS investigation; proof of qualifying experience; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation by failing or refusing to respond to audit letter and attend meeting to establish compliance with continuing education requirements; real estate broker’s license suspended until licensee submits proof of compliance with continuing education requirement

385 DOS 97 Matter of DOS v. Moore - due process; failure to appear at hearing; DOS fails its burden of proof; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where licensee fails or refuses to respond to audit letter and to attend meeting to establish continuing education requirements; DOS fails its burden of proof where licensee fails to respond to audit letter, fails to appear at meeting and fails to appear at hearing; real estate salesperson’s license suspended until licensee presents proof of compliance with continuing education requirement

386 DOS 97 Matter of DOS v. Frost - due process; failure to appear at hearing; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where licensee fails or refuses to respond to audit letter and to attend meeting to establish education requirements; DOS fails its burden of proof to establish licensee’s non-fulfillment of continuing education requirements where licensee fails to respond to audit letter, fails to attend meeting and fails to appear at hearing; real estate broker’s license suspended until licensee presents proof she has complied with continuing education requirements

15 DOS 98 Matter of DOS v. Millien - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where fails or refuses to respond to audit letter and letter requesting licensee to appear and provide proof of compliance with continuing education requirements; DOS fails its burden of proof to establish non-fulfillment of continuing education requirements whether licensee fails to respond to audit, fails to appear and provide evidence of fulfillment of continuing education requirement and fails to appear at hearing; real estate salesperson’s license is suspended until licensee presents proof of compliance with continuing education requirements

15 DOS 98 Matter of DOS v. Soormaghen - due process; failure to appear at hearing; proof of qualifying experience;ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to establish compliance with mandatory continuing education requirements; license renewal in violation of RPL §441(3)(a) where licensee had not complied with mandatory continuing education requirements; salesperson’s license revoked

40 DOS 98 Matter of DOS v. Ferguson - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where she only partially responds to audit letter and fails to respond to letter requesting appearance to establish continuing education requirements; DOS fails its burden of proof where licensee fails to appear at requested meeting and fails to appear at hearing; license of real estate salesperson suspended until submission of proof of completion of approved continuing education course and further suspension for a period of time equal to amount of time when improperly licensed plus two months

43 DOS 98 Matter of DOS v. Meehan - due process; failure to appear at hearing; proof of qualifying experience; DOS fails its burden of proof; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation when fails or refuses to respond to audit letter and fails or refuses to respond to letter requesting conference to establish continuing education requirements; DOS fails its burden of proof to establish non-compliance with continuing education requirements where licensee fails to respond to audit letter and fails to attend conference to establish continuing education requirements; real estate salesperson’s license is suspended until licensee presents proof of compliance with continuing education requirement

66 DOS 98 Matter of DOS v. England - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation by failing or refusing to respond to audit letter and failing or refusing to appear at conference to establish proof of continuing education requirements; DOS fails its burden of proof that licensee failed to meet its continuing education requirements where licensee fails to respond to audit letter and fails to appear at conference; real estate salesperson’s license is suspended pending proof of completion of continuing education requirements and further suspension for a period of time equal to the amount of time when improperly licensed plus two months

67 DOS 98 Matter of DOS v. Palermo - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee’s renewal application indicated she had not met the mandatory continuing education requirements; whether respondent failed to cooperate with DOS investigation is moot where licensee indicated on her application that she had not met the continuing education requirements; salesperson’s license revoked

84 DOS 98 Matter of DOS v. Lowe - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee failed to cooperate with DOS investigation by failing or refusing to respond to audit letter and request for conference to establish continuing education requirements; DOS fails its burden of proof where licensee fails to respond to audit letter, fails to appear at conference to establish continuing education requirements and fails to appear at hearing; real estate salesperson’s license is suspended until licensee presents proof of compliance with continuing education requirement

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

108 DOS 98 Matter of DOS v. Nwozuzu - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; licensee fails to cooperate with DOS investigation by failing or refusing to respond to audit letter and failing or refusing to attend conference to establish proof of continuing education requirements; DOS fails its burden of proof to establish licensee failed to meet his mandatory continuing education requirement as licensee failed to respond to audit letter, failed to attend conference and failed to appear at hearing; real estate salesperson’s license suspended until licensee establishes completion of continuing education requirement and further suspension for a period equal to amount of time unlawfully licensed plus two months

183 DOS 98 Matter of DOS v. Owolodun -- due process; prior misconduct; proof of qualifying experience; ex partehearing may proceed upon evidence of proper service; statutory bar from holding license as a real estate salesperson where licensee convicted of a crime which is the equivalent of a felony under New York law and where licensee has not subsequently received an executive pardon, a certificate of relief from disabilities, or a certificate of good conduct; salesperson’s license revoked

190 DOS 98 Matter of DOS v. Annunziata -- due process; DOS fails its burden of proof; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; DOS fails its burden of proof that licensee failed to meet continuing education requirement where licensee’s renewal application indicated that the requirement was met and licensee failed to appear at hearing; licensee failed to cooperate with DOS investigation by failing to respond to audit letter and to appear and provide proof of continuing education requirements; salesperson’s license suspended until such time as proof submitted of satisfactory completion of continuing education requirements; additional suspension equal to the amount of time, if any, improperly licensed plus two months

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

209 DOS 98 Matter of DOS v. Velardi -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; ex parte hearing permissible upon proof of proper service; licensee failed to cooperate with DOS investigation by failing or refusing to provide material information regarding continuing education requirements; salesperson’s license suspended until proof presented of satisfactory completion of continuing education requirements

210 DOS 98 Matter of DOS v. Renna -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; ex parte hearing permissible upon proof of proper service; licensee failed to cooperate with DOS investigation by failing or refusing to provide material information regarding continuing education requirements; salesperson’s license suspended until proof presented of satisfactory completion of continuing education requirements

211 DOS 98 Matter of DOS v. Mallery -- due process; failure to appear at hearing; proof of qualifying experience; ex parte hearing may be held upon proof of proper service; salesperson’s license improperly renewed when applicant stated she had not met the continuing education requirements; applicant fails to cooperate with DOS investigation when she did not comply with requests to provide proof of continuing education requirement; salesperson’s license revoked

234 DOS 98 Matter of DOS v. Thomas -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; license renewal improper where applicant indicated on application that she had not completed the continuing education requirements; DOS failed to prove that respondent did not cooperate in DOS investigation; salesperson’s license revoked

237 DOS 98 Matter of DOS v. Harris -- due process; failure to appear at hearing; jurisdiction; vicarious liability; collateral estoppel; ex parte hearing may proceed upon proof of proper service; DOS retains jurisdiction of a licensee after expiration or surrender of a license where alleged acts occurred while broker was licensed and were within two-year automatic renewal period; refusal to refund unearned commission; broker is obligated to supervise brokerage activities of salespersons and is vicariously liable for the misconduct of its salespersons, limited only with regard to penalty in cases where the broker lacked actual knowledge of misconduct or did not retain any benefit derived from the misconduct; DOS estopped from complaining that broker commingled commissions as issue was determined in prior proceeding and found not have occurred; relicensure by broker or salesperson conditioned upon payment of $1,000 fine and proof that unearned commissions were refunded with interest

120 DOS 98 Matter of DOS v. Resil -- due process; accounting to clients; deposits; ex parte hearing is permissible upon proof of proper service; notice of hearing may be served by sending it certified mail to the last known business address; violation of 19 NYCRR 175.1 and 175.2 for commingling broker’s and client’s funds and failure to account for trust funds; accepting deposit monies under pretext that it would be applied to purchase of real property and then applying it differently constitutes fraudulent practices; failure to pay judgment without showing an inability to do so is demonstration of untrustworthiness; salesperson’s licensed revoked; relicensure conditioned upon proof of satisfaction of judgment and return of deposit monies with interest

143 DOS 98 Matter of DOS v. Badescu -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; ex parte hearing is permissible upon proof of proper notice of hearing; salesperson fails to comply with continuing education requirements; licensee did not refuse or fail to cooperate with DOS investigation where licensee did not appear before DOS and supply information regarding completion of continuing education requirements when licensee previously informed DOS in writing that he had not completed the requirements; salesperson’s license revoked

144 DOS 98 Matter of DOS v. Merchant -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; licensee failed to cooperate with DOS investigation by not responding to DOS request to prove compliance with continuing education requirements; DOS fails to prove non-fulfillment of the continuing education requirement; salesperson’s license suspended until proof provided to DOS that she has complied with the continuing education requirement

148 DOS 98 Matter of DOS v. Vergara -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; DOS fails its burden of proof; proof of qualifying experience; salesperson fails to comply with DOS investigation when failed to cooperate with DOS requests for information regarding education requirement; DOS failed to prove non-fulfillment of continuing education requirement where licensee affirmed under penalty of perjury that she completed the continuing education requirement; salesperson’s license suspended until licensee provides proof that she has completed the continuing education requirement

149 DOS 98 Matter of DOS v. Lise -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; DOS fails its burden of proof; proof of qualifying experience; salesperson fails to comply with DOS investigation when failed to cooperate with DOS requests for information regarding education requirement; DOS failed to prove non-fulfillment of continuing education requirement where licensee affirmed under penalty of perjury that she completed the continuing education requirement; salesperson’s license suspended until licensee provides proof that she has completed the continuing education requirement

156 DOS 98 Matter of DOS v. Castellano -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; DOS fails its burden of proof; proof of qualifying experience; salesperson fails to comply with DOS investigation when failed or refused to cooperate with DOS requests for information regarding education requirements; DOS failed to prove non-fulfillment of continuing education requirements where licensee affirmed under penalty of perjury that she completed the continuing education requirements; salesperson’s license suspended until licensee provides proof that she has completed the continuing education requirements

163 DOS 98 Matter of DOS v. Henry -- cease and desist; due process; ex parte hearing permissible upon completion of proper service; inadvertent mailing of flyer to home listed on cease and desist list constitutes act of incompetence; DOS failed to make proper service of notice on one respondent and complaint dismissed as against him; $500.00 fine imposed on respondent properly served

168 DOS 98 Matter of DOS v. Briggs-- due process; failure to appear at hearing; proper business practices; ex partehearing may proceed upon proof of proper service; licensee changed location of principal place of business without notice to DOS and operated a real estate brokerage business under an unlicensed name; real estate services rendered on behalf of an unlicensed entity are illegal; $500.00 fine, failure to timely pay fine will result in suspension

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

301 DOS 98 Matter of DOS v. Lawton - due process; failure to appear at hearing; failure to pay child support; an ex parte hearing may proceed upon proof of proper service; DOS conducts hearing upon order of Family Court that licensee has accumulated unpaid support or combined child and spousal support arrears equivalent to or in excess of the amount of current support due for a four month period; DOS hearing solely for the purpose of determining whether or not licensee has made payment in full; licensee has burden to present proof of payment in full; salesperson’s license suspended until such time as Family Court notifies DOS of payment in full of unpaid support

310 DOS 98 Matter of Mohamed - due process; failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; applicant’s request for hearing to review denial of application for license based upon prior felony conviction is dismissed where applicant fails to appear at hearing; application for brokers license denied

312 DOS 98 Matter of Zer - due process; failure to appear at hearing; prior misconduct; subpoenas; ex partehearing may proceed upon proof of proper service; applicant’s failure to appear at hearing deemed to be withdrawal of request for hearing; request for issuance of interrogatories as a pre-trial discovery tool denied; request for issuance of subpoena granted; other questions moot

314 DOS 98 Matter of DOS v. Eng - due process; failure to appear at hearing; accounting to client; bad checks; fraudulent practice; ex parte hearing is permissible upon proof of proper notice of hearing; broker acting in capacity as managing agent for a rental building violated 19 NYCRR 175.2 and engaged in fraudulent practice when he failed to account to his principal for money collected; issuance of bad checks pursuant to settlement agreement demonstrates untrustworthiness and incompetency; failure to respond to or claim from post office letters from investigator constitutes failure to cooperate with DOS investigation; broker’s license revoked, reapplication conditioned upon proof of payment of restitution with interest

4 DOS 99 Matter of DOS v. Aronson - due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; salesperson fails to comply with DOS investigation when she failed or refused to cooperate with DOS’s request for information regarding education requirements; salesperson’s license suspended until licensee provides proof that she has completed the continuing education requirements

5 DOS 99 Matter of DOS v. Grant - due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; salesperson fails to comply with DOS investigation when he failed or refused to cooperate with DOS’s request for information regarding education requirements; salesperson’s license suspended until licensee provides proof that he has completed the continuing education requirements

6 DOS 99 Matter of DOS v. Zinkevich - due process; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; salesperson fails to comply with DOS investigation when he failed or refused to cooperate with DOS’s request for information regarding education requirements; salesperson’s license suspended until licensee provides proof that he has completed the continuing education requirements

264 DOS 99 Matter of DOS v. Fischer - due process; material misstatement on application; ex parte hearing may proceed in the absence of respondent upon proof of proper service; failure to disclose felony conviction for driving a commercial vehicle while intoxicated is material misstatement on application; real estate broker’s license revoked

318 DOS 02 Matter of DOS v. Conciatori - DOS fails its burden of proof; disclosure of ownership interest; disclosure of conditions affecting the value or desirability of listed premises; broker and his wife listed their property with another real estate brokerage and informed the listing agent that the husband was a licensed broker; DOS failed to prove that broker/seller failed to disclose he was a licensed real estate broker where he disclosed his status to the listing broker at the time of the listing and provided the listing agent with a copy of his license; DOS failed to prove claim that seller/broker failed to adequately represent and/or misrepresented prior problems with a well where broker/seller made proper disclosures to the listing agent; complaint dismissed

956 DOS 06 DOS v. Maneri- listing and advertising of home in violation of local zoning; failure to disclose ownership interest; fraudulent practice defined; breach of fiduciary duty, untrustworthiness and incompetence, revocation; Realtor (LIBOR) ethics decision not considered as no showing whether hearing is fair and provided due process

1023 DOS 06 Matter of Tesoriero – continuing education, failure to cooperate, failure to appear, dismissal without prejudice as notice of hearing sent to inaccurate and incomplete business address and not received by respondent

4 DOS 07 Matter of Gutriman – cease-and-desist, expired license, due process, failure to serve complaint at last known business address, dismissal without prejudice

374 DOS 09 Matter of Aaron – broker; improper service of complaint; complaint dismissed without prejudice

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