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19. Failure to Appear at Hearing

14 DOS 97 Matter of Gawel - notary and broker’s license renewals; failure to appear at hearing requested by applicant on denial of renewal of notary application is deemed withdrawal of hearing request - after 35 days decision to deny is final; DOS must provide applicant with final response to request for administrative review of denial of broker’s license renewal to entitle applicant to request a hearing; application for renewal of broker’s license remanded to DOS for final determination on request for administrative review

86 DOS 97 Matter of DOS v. Samarel - unlicensed activity; requirement of restitution; administrative hearing may be held ex-parte where there is evidence that notice of the place, time and purpose of the hearing was properly served; salesperson demonstrates extreme untrustworthiness when he removes personal property from home without owner’s consent; salesperson demonstrates incompetency when he engages in regulated brokerage transactions during period when license expired; license revocation; restitution of misappropriated property and return of commissions received for activities when unlicensed, with interest, as precondition to application for relicensure

92 DOS 97 Matter of Coletti - ex-parte hearing; an ex-parte quasi-judicial administrative hearing is permissible where there is evidence that respondent was properly served with notice of the time, place and purpose of the hearing; applicants failure to appear at hearing is deemed a withdrawal of request; decision to deny application for licensure final after 35 days of notice of denial

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

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

319 DOS 97 Matter of Smith - adjournments; due process; failure to appear at hearing; failure to cooperate with DOS investigation; qualifying experience; a request for an adjournment must be received by the hearing tribunal no later than 3 business days prior to the scheduled hearing; an ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to meet mandatory continuing education requirements; DOS fails to establish failure to cooperate with an investigation where licensee fails to attend requested meeting to discuss education requirements where licensee previously informed DOS that he had not completed the requirements; salesperson’s license revoked

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

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

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

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

13 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

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

208 DOS 98 Matter of DOS v. LaBella -- 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 demands to prove continuing education requirements met; salesperson’s license suspended until licensee presents proof of compliance with continuing education requirements

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

238 DOS 98 Matter of Canino -- failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; application for broker’s license denied where applicant plead guilty to felony charge and no proof that applicant obtained a certificate of relief from disabilities, a certificate of good conduct or an executive pardon or that the records of the conviction had been sealed, or that the conviction has been set aside

243 DOS 98 Matter of DOS v. Top Star Realty Corp. -- failure to appear at hearing; cease-and-desist; vicarious liability; ex parte hearing may proceed upon proof of proper service; delivering flyer in mailbox of home on cease and desist list violates 19 NYCRR 175.21; broker is obligated to supervise brokerage activities of its salespersons; broker is vicariously liable for the misconduct of his 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 that misconduct; corporate broker, representative broker and salesperson each fined $250

246 DOS 98 Matter of DOS v. Cirrincione -- DOS fails its burden of proof; proof of qualifying experience; failure to appear at hearing; DOS fails its burden of proof in establishing licensee failed to meet continuing education requirements where licensee failed to appear at hearing and DOS presented no proof of licensee’s failure; licensee not faulted for failure to respond to audit request or to appear at hearing where DOS sent notice to an address at which DOS was aware the respondent no longer worked; complaint dismissed

250 DOS 98 Matter of DOS v. Kay -- proof of qualifying experience; DOS fails its burden of proof; failure to cooperate with DOS investigation; failure to appear at hearing; DOS fails to prove that applicant did not meet the continuing education requirements where the applicant did not appear at the hearing and DOS presented no proof of the applicant’s failure; applicant failed to cooperate with DOS investigation by not responding to the continuing education audit letter; salesperson’s license suspended until proof provided of completion of continuing education requirement; additional suspension for a period of time, if any, equal to the amount of time improperly licensed plus 2 months

256 DOS 98 Matter of DOS v. Neracker -- proof of qualifying experience; failure to appear at hearing; failure to cooperate with DOS investigation; applicant failed to cooperate with DOS investigation by not timely responding to continuing education audit letter and by failing to appear at conference; license wrongfully renewed upon false statement in application that applicant complied with continuing education requirements; salesperson’s license suspended for a period of 21 months after receipt by DOS of applicant’s license and until such time as applicant submits application for renewal and documentary proof of compliance with the continuing education requirements

258 DOS 98 Matter of DOS v. Rayane -- failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; license improperly renewed; applicant fails to respond to DOS audit letters; applicant did not comply with continuing education requirements; salesperson’s license revoked

264 DOS 98 Matter of DOS v. Maiuzzo -- failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; applicant failed to comply with DOS audit letter requests to establish continuing education requirements; DOS fails to prove applicant failed to meet continuing education requirements where applicant failed to appear at hearing and DOS provided no proof that applicant failed to meet the continuing education requirements; broker’s license suspended until such time as applicant submits satisfactory proof of completion of continuing education requirements; suspension for such period of time, if any, that applicant was improperly licensed plus 2 months

266 DOS 98 Matter of DOS v. Edman -- failure to surrender license; failure to appear at hearing; ex parte hearing is permissible upon proof of proper service; broker failed to comply with prior order (135 DOS 98) requiring payment of restitution and suspension of license by failing or refusing to return her license certificate and pocket card to DOS within 5 days of having received notice of suspension of her license; failure to surrender license certificate and pocket card demonstrates untrustworthiness and incompetency; broker’s license is revoked; reapplication conditioned upon proof of full compliance with prior order

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

296 DOS 98 Matter of DOS v. Blessinger -- proof of qualifying experience; failure to appear at hearing; failure to cooperate with DOS investigation; applicant failed to respond to DOS audit letters thereby failing to cooperate with DOS investigation; salesperson’s license suspended until such time as proof is provided of compliance with continuing education requirements

299 DOS 98 Matter of DOS v. Goode -- failure to appear at hearing; salesperson fails to disclose to seller capacity in which he was acting; salesperson failed to explain to buyer that she was responsible for payment of commission; salesperson’s license revoked

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

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

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

12 DOS 99 Matter of DOS v. Yasrebi - automatic revocation upon felony conviction; failure to appear at hearing; jurisdiction; ex parte hearing permissible upon proof of proper service; DOS retains jurisdiction over respondent where license has expired but disqualifying acts occurred while respondent was entitled to renewal of license during two year renewal period; conviction of federal felony bars respondent from holding a license as a real estate salesperson; salesperson’s license revoked

13 DOS 99 Matter of DOS v. Shahkohi - automatic revocation upon felony conviction; failure to appear at hearing; jurisdiction; ex parte hearing permissible upon proof of proper service; DOS retains jurisdiction over respondent where license has expired but disqualifying acts occurred while respondent was entitled to renewal of license during two year renewal period; conviction of federal felony bars respondent from holding a license as a real estate salesperson; salesperson’s license revoked

23 DOS 99 Matter of DOS v. Baratian - automatic revocation upon felony conviction; failure to appear at hearing; jurisdiction; prior misconduct; ex parte hearing may proceed upon proof of proper service; DOS retains jurisdiction where respondent is eligible to automatically apply to renew license; felony conviction without executive pardon, certificate of good conduct or certificate of relief from disabilities is statutory bar to licensure; salesperson’s license revoked

24 DOS 99 Matter of DOS v. Eliyahv - automatic revocation upon felony conviction; failure to appear at hearing; jurisdiction; prior misconduct; ex parte hearing may proceed upon proof of proper service; DOS retains jurisdiction where respondent is eligible to automatically apply to renew license; felony conviction without executive pardon, certificate of good conduct or certificate of relief from disabilities is statutory bar to licensure; salesperson’s license revoked

26 DOS 99 Matter of DOS v. Bronson - failure to pay judgment; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; DOS fails its burden of proof to establish broker made false statement with intent to deceive regarding property conditions; broker negligently makes misstatement to buyer; failure to pay judgment demonstrates untrustworthiness unless broker presents valid evidence of inability to pay; broker fails to appear to provide evidence; submission of unverified written answer is insufficient evidence to prove inability to pay judgment; broker’s license suspended until broker submits proof he has fully paid judgment

42 DOS 99 Matter of Smadar - failure to pay judgment; failure to appear at hearing; unearned commission; ex partehearing may proceed upon proof of proper service; denial of renewal of license due to failure to pay judgment; applicant fails to appear and establish that he is qualified to be licensed; application for brokers license denied

52 DOS 99 Robinson v. DOS - failure to appear at hearing; proof of qualifying experience; material misstatement on application; ex parte hearing may proceed upon proof of proper service; denial of brokers license based upon failure to complete education requirements and submitting falsified and altered educational certificates; failure to appear deemed a withdrawal of request for hearing; application for brokers license denied

76 DOS 99 Matter of DOS v. Gomez - failure to appear at hearing; failure to cooperate; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements; license renewal was issued in violation of RPL §441(3)(a); licensee failed or refused to cooperate with reasonable requests to either submit proof of compliance with continuing education requirement or to surrender license issued in error; salesperson’s license revoked

78 DOS 99 Matter of DOS v. Jadduroy - failure to appear at hearing; failure to cooperate; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements; license renewal was issued in violation of RPL §441(3)(a); licensee failed or refused to cooperate with reasonable request to either submit proof of compliance with continuing education requirement or to surrender license issued in error; salesperson’s license revoked

79 DOS 99 Matter of DOS v. Pagano - disclosure of agency relationships; failure to appear at hearing; proper business practices; unauthorized practice of law; unearned commissions; vicarious liability; fraudulent practice; jurisdiction; ex parte hearing may proceed upon proof of proper service; DOS has jurisdiction after expiration of respondents’ licenses as acts of misconduct occurred and the proceedings were commenced while the respondents were licensed; licensee fails to timely provide seller client with agency disclosure form prior to entering into listing agreement and fails to timely provide agency disclosure form to buyer upon first substantive contact; broker fails to make it clear for which party he is acting; broker violates 19 NYCRR 175.24 by using exclusive right to sell listing agreement without mandatory definitions of “exclusive right to sell” and “exclusive agency”; broker breaches fiduciary duties to seller clients by misleading them as to buyer’s ability to financially consummate the transaction; broker breaches his fiduciary duty to seller by referring seller to the attorney who represented the buyers when he knew or should have known such attorney could not properly protect seller’s interests; improper for broker to use listing agreements providing for broker to retain one half of any deposit if forfeited by buyer as such forfeiture clause could, by its terms, allow broker to retain part of the deposit when broker did not earn a commission; broker must conduct business under name as it appears on license; broker engaged in the unauthorized practice of law in preparing contracts for purchase and sale of real estate which did not contain a clause making it subject to the approval of the parties’ attorneys and were not a form recommended by a joint bar/real estate board committee; broker demonstrated untrustworthiness and incompetency in using sales contract which purported to change the terms of the listing agreement to include a higher commission; broker demonstrated untrustworthiness and incompetency in using contracts of sale which were unclear, ambiguous, vague and incomplete; broker failed to amend purchase agreement to reflect amendment to increase deposit amount; broker demonstrated untrustworthiness in back-dating purchase agreements; broker demonstrated untrustworthiness in participating in scheme to have seller hold undisclosed second mortgage and to mislead first mortgagee about the purchaser’s financial ability to purchase; broker demonstrated untrustworthiness by claiming unearned commission and filing affidavit of entitlement for unearned commission; DOS fails to establish by substantial evidence that respondent acted as undisclosed dual agent; corporate broker bound by the knowledge acquired by and is responsible for acts committed by its licensees within the actual or apparent scope of their authority; corporate and individual brokers’ licenses revoked, no action taken on application for renewal until proof of payment of sum of $2,000.00 plus interests for deposits unlawfully retained

83 DOS 99 Matter of DOS v. Dhanraj - failure to appear at hearing; fraudulent practices; prior misconduct; forgery; unlicensed activity; ex parte hearing is permissible upon proof of proper service; conviction of felony (larceny in conducting real estate transactions) bars licensure as salesperson where no proof licensee has been granted an executive pardon, a certificate of relief from disabilities, or a certificate of good conduct; licensee engaged in fraudulent practices by brokering transactions without the knowledge of his supervising broker and defrauding clients out of deposit money; unlawfully holding self out to be a real estate broker without first procuring a license therefore; use of a forged license is an aggravating factor; DOS fails to prove licensee conducted a regulated real estate transaction while not licensed to do so; salesperson’s license revoked

84 DOS 99 Matter of DOS v. Woodland - failure to appear at hearing; jurisdiction; mortgage applications; failure to pay judgment; ex parte hearing may proceeding upon proof of proper service; DOS has jurisdiction over respondents for acts of misconduct which occurred during licensure even though the licenses expired on their own terms; DOS fails its burden of proof to establish broker failed to obtain signature on agency disclosure form; DOS fails its burden of proof to establish that a broker has an obligation to “pre-qualify” a potential purchaser; broker breached duty to deal honestly with the public when advised purchaser he would assist in obtaining financing and failed to do so; DOS fails its burden of proof that broker wrongfully failed to hold a $500.00 deposit in escrow as deposit was remitted to seller with the permission of buyer; failure to pay judgment without a showing that broker is unable to do so is a demonstration of untrustworthiness; no action to be taken for reapplication for broker’s license until payment of $1,000.00 fine and proof of satisfaction of judgment

97 DOS 99 Matter of DOS v. Majestic - failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; settlement; ex parte hearing may proceed upon proof of proper service; licensee previously entered into two consent agreements with DOS stating he had not completed the continuing education requirements, would pay a fine of $500.00 and would provide proof that he completed the continuing education requirements; licensee timely paid the fine but failed to present proof that he had complied with the continuing education requirements; DOS fails to prove that licensee failed or refused to cooperate with an investigation for failure to submit proof of compliance with continuing education requirements; failure to submit proof of compliance with prior consent agreements; salesperson’s license revoked

112 DOS 99 Matter of DOS v. Dorfman - adjournments; proper business practices; failure to appear at hearing; failure to cooperate with DOS investigation; accounting to client; ex parte hearing may proceed upon proof of proper service; individually licensed broker seeking to conduct brokerage business under a name other than his own must apply for a license under such new name; broker engaged in the leasing of real property through an unlicensed corporation; broker failed to cooperate with DOS investigation by failing to respond to DOS letters and telephone calls; complaint alleges broker failed to provide an accounting or copies of records of management for owner’s property; broker may be required to return commissions and fees received which he is not entitled to; $1,000.00 fine and suspension of broker’s license until such time as broker establishes he has fully complied with DOS’s investigation and made a full and satisfactory accounting to owner, shall have paid to owner all money due and owning to him as established by the accounting, with interest, and shall have refunded to owner all commissions and other fees, with interest, paid

121 DOS 99 Matter of DOS v. Swaap - failure to appear at hearing; prior misconduct; material misstatement on application; availing of license; apartment information vendor; licensee’s conviction of a felony (grand larceny in the second degree) is a bar to licensure in the absence of a executive pardon, Certificate of Relief from Disabilities or a Certificate of Good Conduct; licensee fails to establish requisite pardon or Certificate of Relief from Disabilities or Good Conduct; unlicensed operation of Internet business offering to supply listings of apartments available for rent for a fee constitutes unauthorized apartment information vending; broker avails license to salesperson by leaving salesperson in charge of brokerage business with authority to sign bank account while broker is in prison; broker’s license revoked

198 DOS 99 Matter of DOS v. Sargeant - prior misconduct; failure to appear at hearing; hearing may proceed in the absence of respondent where proper notification of hearing given; applicant convicted of felony criminal possession of a weapon; failure to appear at hearing deemed withdrawal of request for hearing rendering questions raised by hearing moot; request for hearing dismissed

330 DOS 99 Matter of DOS v. Pope - failure to appear at hearing; material misstatement on application; prior misconduct; notarization; ex parte hearing is permissible upon proper notice; conviction for fraud and failure to make restitution pursuant to plea demonstrates gross untrustworthiness; acknowledgment of deed without signatory being present; broker’s license revoked; notary commission revoked

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

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 purchasers 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

234 DOS 00 Spaziani v. DOS - prior misconduct; failure to appear at hearing; ex parte hearing may proceed upon proper notice; failure to appear after proper notification of hearing upon application for licensure is deemed a withdrawal of the request for the hearing; request for a hearing dismissed; application for salespersons license denied

272 DOS 00 Matter of DOS v. Joseph - failure to appear at hearing; ex parte hearing may proceed upon proper notice; DOS fails its burden of proof that listing broker failed to make the required agency disclosure when the listing broker purchased his own listing; complaint dismissed

298 DOS 00 DOS v. Harris - failure to appear at hearing; material misstatement on application; prior misconduct;ex parte hearing may proceed upon proof of proper notice; material misstatement in the application for a sales persons license by failing to disclose prior criminal convictions; salespersons license revoked

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

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

302 DOS 00 Matter of DOS v. Focer - cease and desist; failure to appear at hearing; vicarious liability; mailing in error of a single, isolated solicitation, while a violation of statute and regulation, is not a demonstration of either untrustworthiness or incompetency; broker cannot be held liable for violation by his salesperson or associate broker unless broker has actual knowledge of the violation and retains some benefit from that violation; charges against associate broker dismissed where evidence insufficient to establish proper service; charges dismissed

374 DOS 00 Matter of DOS v. Aklah - failure to appear at hearing; prior misconduct; ex parte hearing is permissible upon proof of proper service; salespersons license may not be held by a person who has been convicted of a felony (depositing a counterfeit check) and who has not subsequently received an executive pardon, a certificate of relief from disabilities or a certificate of good conduct; salesperson’s license revoked

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

405 DOS 00 Fornario v. DOS - failure to appear at hearing; ex parte hearing may be held upon proof of proper service; applicant’s failure to appear at hearing to review denial of application for licensure is deemed a withdrawal of the request for a hearing; application for renewal of license as a real estate broker is denied

440 DOS 00 DOS v. Lundie - failure to appear at hearing; proof of qualifying experience; ex parte hearing is permissible upon proof of proper service; failure to respond to DOS letter requesting appearance to establish completion of continuing education requirements constitutes failure to cooperate with DOS investigation; failure to comply with continuing education requirements; salesperson’s license revoked

561 DOS 00 DOS v. Joseph - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements; licensee failed to cooperate with DOS investigation by failing or refusing to respond to DOS audit letters; broker’s license revoked

577 DOS 00 DOS v. Raimondo - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements and failed to cooperate with DOS investigation by failing or refusing to respond to DOS audit letter; salesperson’s license revoked

578 DOS 00 DOS v. Pulido - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements and failed to cooperate with DOS investigation by failing or refusing to respond to DOS audit letter; broker’s license revoked

645 DOS 00 Matter of DOS v. Harris - failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; statutory bar to licensure upon conviction of a felony without subsequently receiving an executive pardon, certificate of good conduct or certificate of relief from disabilities; license may be revoked upon material misstatement in application; salesperson’s license revoked

669 DOS 00 DOS v. Morales - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; salesperson failed to comply with continuing education requirements; salesperson’s license revoked

671 DOS 00 DOS v. Kieran O’Brien Real Estate & Construction, Inc. - failure to appear at hearing; failure to pay judgment; vicarious liability; ex parte hearing may proceed upon proof of proper service; failure to pay a judgment lawfully obtained and not overturned is a demonstration of untrustworthiness unless the broker presents valid evidence of inability to pay; corporate real estate broker is vicariously liable for its representative broker’s unlawful acts; representative broker’s and corporate broker’s licenses revoked

700 DOS 00 Matter of DOS v. Poitevien - failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; federal felony conviction is a bar to licensure as a real estate salesperson in the absence of receiving an executive pardon, certificate of relief from disabilities or a certificate of good conduct; real estate salesperson’s license revoked

36 DOS 01 Matter of Inderdeo - failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing upon application for licensure is deemed to be a withdrawal of request for a hearing; application for license as a real estate salesperson is denied

37 DOS 01 Matter of Rivera - failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing upon application for licensure is deemed to be a withdrawal of request for a hearing; application for license as a real estate salesperson is denied

67 DOS 01 Matter of DeFalco - failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing upon application for licensure is deemed to be a withdrawal of request for a hearing; application for license as a real estate salesperson is denied

287 DOS 01 DOS v. Mulwitz - failure to appear at hearing; jurisdiction; listing agreement; DOS has jurisdiction where broker is licensed at time of alleged unlawful conduct and where the disciplinary hearing was held during the two year period where broker was eligible to automatically apply to renew license; ex parte hearing may proceed upon proof of proper service; Reg. 175.10 prohibits the offering of property for lease without the authorization of the owner; DOS fails to prove failure to cooperate with DOS investigation as DOS was unable to contact broker and thereby broker did not fail to supply requested information; DOS may order restitution for unearned commissions but may not order damages; restitution in the amount of $825.00; further application request will not be considered until proof of payment of restitution

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

623 DOS 00 Matter of DOS v. Kamruzzaman - automatic revocation upon felony conviction; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; federal felony conviction is automatic bar from holding license as a real estate salesperson; no proof presented that licensee was granted an Executive Pardon, a Certificate of Relief from Disabilities or a Certificate of Good Conduct; salesperson’s license revoked

633 DOS 00 Matter of DOS v. Romani - cease and desist; failure to appear at hearing; salesperson’s testimony that she was unaware that the area in which she was distributing flyers was covered by the cease and desist list demonstrates incompetency; fact that salesperson refused to accept offer of fine of $500.00 to resolve the matter may be considered in imposing fine; $600.00 fine

632 DOS 00 DOS v. Mkrtchyan - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; salesperson failed to comply with continuing education requirements; salesperson’s license revoked

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

448 DOS 01 Matter of DOS v. Reid - duty to supervise sales associates; failure to appear at hearing; jurisdiction; vicarious liability; ex parte hearing may proceed upon proof of proper service; DOS retains jurisdiction even though license has expired since license may be renewed merely by submitting an application and paying the appropriate fees; activities of associate broker are governed exclusively by the provisions of RPL Article 12-A as they pertain to real estate salespersons; associate broker is not responsible for the supervision of other sales associates and may not be held vicariously liable for the acts of other salespersons; charges dismissed

455 DOS 01 Truelson v. DOS - failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing to review DOS’s denial of application for licensure (based upon conviction of grand larceny 2nd degree, class E felony) scheduled at the request of the applicant is deemed a withdrawal of the request for hearing; renewal of salespersons license denied

465 DOS 01 Bushlow v. DOS - failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing to review DOS’s denial of application for licensure (conspiracy to commit mail fraud, class D felony) scheduled at the request of the applicant is deemed a withdrawal of the request for hearing; renewal of salespersons license denied

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

486 DOS 01 Matter of Borelle - prior misconduct; failure to appear at hearing requested by applicant for proposed denial of renewal of license based upon prior misconduct (petit larceny, class A misdemeanor - issuance of a check on brokerage escrow account dishonored for insufficient funds) is deemed a withdrawal of request for hearing; application for renewal of license as a real estate broker is denied

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

640 DOS 01 Librizzi v. DOS - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; applicant obligated to supply DOS information, reasonably sufficient in detail, to prove experiential competency; applicant’s evidence is insufficient to prove the claimed experience; denial of application for license as a real estate broker confirmed

649 DOS 01 Matter of Schuler - failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; applicant timely requests hearing upon DOS’s proposal to deny renewal of his salesperson’s license upon charges of unlicensed activity, failure to file a required change of association notification, failure to satisfy a judgment regarding funds derived during performance as a real estate salesperson, committing escrow violations and failing to provide agency disclosure; applicant’s failure to appear at hearing deemed to be a withdrawal of his request for hearing; application for renewal of license as a real estate salesperson denied

660 DOS 01 Matter of DOS v. Wasserman - proof of qualifying experience; failure to appear at hearing; amendment of pleading to conform to the proof; ex parte hearing may proceed upon proof of proper service; complaint may not be amended to conform to the proof in the absence of an appearance by the respondent; complaint only alleged that broker had wrongfully claimed to have completed the required continuing education course when in fact broker was claiming to be exempt; complaint dismissed even though broker not exempt

661 DOS 01 Matter of DOS v. Sroka - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; salesperson obtained renewal of his license by falsely stating that he had completed the required continuing education courses; salespersons license revoked

663 DOS 01 Matter of DOS v. Connelly - proof of qualifying experience; failure to appear at hearing; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; salesperson obtained license renewal by falsely stating he had completed the required continuing education courses; salespersons license revoked

664 DOS 01 Matter of DOS v. Reitz - proof of qualifying experience; failure to appear at hearing; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; salesperson obtained license renewal by falsely stating he had completed the required continuing education courses; salespersons license revoked

689 DOS 01 Harilal v. DOS - failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; applicant’s failure to appear at hearing to review denial of application for licensure is deemed a withdrawal of the request for a hearing; request for a hearing of review is dismissed

752 DOS 01 Matter of DOS v. Caldwell - failure to appear at hearing; unlicensed activity; ex parte hearing may proceed upon proof of proper service; salesperson engaged in unlicensed activity after license expired and prior to renewal; unlawful for broker to employ unlicensed salesperson; broker and salesperson fail to accept offer of $200 fine each; broker and salesperson fined $500 each

757 DOS 01 Matter of DOS v. Whelan - failure to appear at hearing; material misstatement on application; ex partehearing may proceed upon proof of proper service; application for license as a real estate salesperson contained a material misstatement; applicant failed to disclose felony convictions; salespersons license revoked

790 DOS 01 Matter of DOS v. Abbate - failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; salesperson convicted of a federal felony without having received an Executive Pardon, a Certificate of Relief from Disabilities or a Certificate of Good Conduct; salespersons license revoked

822 DOS 01 Matter of DOS v. Munoz - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; salesperson procured renewal of his license by falsely stating that he had completed the required continuing education courses; salesperson offered the opportunity to resolve the matter by payment of a fine of $500; $1,000 fine

823 DOS 01 Matter of DOS v. Ariola - failure to appear at hearing; proof of experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; salesperson procures license renewal by falsely stating that he completed the required continuing education courses; salesperson ignored DOS’s request to cooperate with audit investigation and provide proof of completion of continuing education courses; DOS presents no proof of respondent’s failure to complete the required courses; salesperson may have been wrongfully licensed for a substantial period of time; salesperson’s license suspended until she submits proof of completion of the continuing education courses and upon submission, if it appears that salesperson has not yet completed the courses, her license shall be suspended for a period equal to the amount of time she was improperly licensed plus two months

865 DOS 01 Matter of DOS v. Dotson - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; DOS fails its burden of proof to establish salesperson has not complied with continuing education requirements; salesperson failed to cooperate with DOS investigation by ignoring its request to comply with continuing education audit; salespersons license revoked

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

2 DOS 02 Matter of Coe - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; applicant’s failure to appear at hearing is deemed to be withdrawal of request for review of proposed license denial; application for license as a real estate salesperson is denied

83 DOS 02 Matter of DOS v. Canavan - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; DOS failed to prove that respondent procured renewal of his license by falsely stating he completed the required continuing education courses; respondent failed to cooperate with DOS audit of his continuing education courses; salespersons license revoked

103 DOS 02 DOS v. Cheng - fraudulent business practice; vicarious liability; failure to appear at hearing; ex partehearing may proceed upon proof of proper service; broker charged in indictment of committing criminal offenses directly relating to fitness to perform duties as a real estate broker; reasonable cause exists to believe broker committed criminal offenses charged by virtue of grand jury indictment; broker charged with defrauding HUD in a mortgage fraud scheme; corporate real estate broker charged with actual knowledge of and is vicariously liable for representative broker’s cognizant misconduct as a corporate officer; broker’s license revoked

202 DOS 02 Matter of DOS v. Frazier - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; respondent ignored DOS request to cooperate with its audit investigation of his continuing education courses; DOS failed to establish respondent had not complied with continuing education requirement; salespersons license revoked

215 DOS 02 Matter of DOS v. Schutz - failure to appear at hearing; proof of qualifying experience; offer of settlement; ex parte hearing may proceed upon proof of proper service; applicant obtains license renewal without completion of required continuing education courses; respondent offered opportunity to pay fine of $500 and complete required courses; salespersons license suspended for a period of time equivalent to that during which she held her license without taking the required courses plus a reasonable amount of additional time to serve as a penalty

248 DOS 02 DOS v. Kosko - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements prior to license renewal; timely compliance with continuing education requirements is mandatory; salespersons license revoked

249 DOS 02 DOS v. O’Connor - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements prior to license renewal; timely compliance with continuing education requirements is mandatory; salespersons license revoked

250 DOS 02 DOS v. Nowack - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements prior to license renewal; timely compliance with continuing education requirements is mandatory; salespersons license revoked

254 DOS 02 DOS v. Coleman - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; licensee failed to comply with continuing education requirements prior to license renewal; timely compliance with continuing education requirements is mandatory; salespersons license revoked

260 DOS 02 DOS v. Moreno - failure to appear at hearing; material misstatement on application; ex parte hearing may proceed upon proof of proper service; material misstatements on original and three renewal applications by falsely stating that applicant had not been previously convicted of misdemeanor criminal offenses; real estate salesperson’s license is revoked

262 DOS 02 Matter of DOS v. Barley - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; respondent ignored DOS’s request to cooperate with its audit of his application and to provide proof that he had completed the continuing education courses; DOS failed to establish that respondent did not comply with continuing education requirements; real estate salespersons license revoked

267 DOS 02 Matter of Franco - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing to oppose denial of license application is deemed a withdrawal of request for a hearing; application for license as a salesperson is denied

269 DOS 02 Matter of Davis - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; failure to appear at hearing to oppose denial of license application is deemed a withdrawal of request for a hearing; application for real estate brokers license is denied

309 DOS 02 Matter of DOS v. Lalla - failure to appear at hearing; proof of qualifying experience; offer of settlement; ex parte hearing may proceed upon proof of proper service; respondent obtained renewal of his license without complying with continuing education requirements; respondent offered opportunity to resolve the matter by payment of a $500 fine and completion of the required continuing education courses; salespersons license suspended for a period of time equivalent to that during which he held his license without taking the required courses plus a reasonable amount of time to serve as a penalty

310 DOS 02 Matter of DOS v. Griffith - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; respondent ignored DOS’s request to cooperate with its audit investigation of his application and to provide proof that he had completed the continuing education requirements; DOS failed to establish that respondent had not complied with the continuing education requirements; salespersons license revoked

311 DOS 02 Matter of DOS v. Frazier - failure to appear at hearing; proof of qualifying experience; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; respondent ignored DOS’s request to cooperate with its audit investigation of his application and to provide proof that he had completed the continuing education requirements; DOS failed to establish that respondent had not complied with the continuing education requirements; salespersons license revoked

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

388 DOS 02 DOS v. Sophin - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; respondent failed to comply with continuing education requirements; salespersons license revoked

406 DOS 02 DOS v. Knutson - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; respondent failed to comply with continuing education requirements; salespersons license revoked

408 DOS 02 DOS v. Elbert - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; respondent failed to comply with continuing education requirements; salespersons license revoked

410 DOS 02 DOS v. Schwartz - failure to appear at hearing; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; respondent failed to comply with continuing education requirements; salespersons license revoked

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

589 DOS 02 DOS v. Giorgi – failure to appear at hearing; notary public; ex parte hearing may proceed upon proof of proper service; broker failed to disclose his suspension from the practice of law; suspension from the practice of law resulted from violations of breach of fiduciary duties to clients; DOS fails to introduce notary application into evidence thereby failing to establish a material false statement on notary application; real estate brokers license revoked

719 DOS 02 DOS v. Silverstein – failure to appear at hearing; failure to cooperate with DOS investigation; ex partehearing may proceed upon proof of proper service; broker fails to submit documents material to DOS investigation and fails to offer any explanation why the documents requested were not submitted; corporate broker’s license and representative broker’s licenses are suspended until such time as they have fully complied with DOS’s information request

721 DOS 02 DOS v. Kennedy – failure to appear at hearing; failure to cooperate with DOS investigation; ex partehearing may proceed upon proof of proper service; salesperson failed to respond to DOS’s request for documents material to an investigation and failed to offer any explanation why the documents requested were not submitted; salesperson’s license suspended until such time as salesperson has fully complied with DOS’s information request

744 DOS 02 DOS v. Agard – attorney; notary public; failure to appear at hearing; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; notary public acts unlawfully when he notarizes a document without the purported signatory being present; broker fails to respond to two DOS letter requests to appear for an interview; notary public commission and license as a real estate broker revoked

786 DOS 02 DOS v. Ortiz – failure to appear at hearing; failure to cooperate with DOS investigation; prior misconduct; salesperson fails to submit documents material to DOS investigation regarding felony conviction; felony conviction is statutory bar to licensure; salespersons license revoked

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

920 DOS 02 DOS v. Simmons – failure to appear at hearing; proper business practices; failure to cooperate with DOS investigation; jurisdiction; ex parte hearing may proceed upon proof of proper service; DOS has jurisdiction after license has expired where conduct occurred while individual was licensed; broker does not file termination of association forms when salespersons cease working for him; broker fails to supply documents or appear for interview after DOS requests; broker fails to cooperate by making false statements to DOS investigators; DOS fails its burden of proof; salesperson not liable for return of unearned commission where commission money was already in possession of broker; broker is not entitled to commission for real estate transaction effectuated by a salesman who is not properly licensed in association with that broker; real estate broker’s license revoked and broker ordered to refund $900.00 commission and $40.00 application fee; charges against salesperson are dismissed

958 DOS 02 DOS v. Louhisdon – failure to appear at hearing; proof of qualifying experience; salesperson failed to comply with continuing education requirements prior to renewal of salespersons license and therefore license renewal issued in violation of law; salespersons license revoked

1007A DOS 02 Cherney v. DOS – failure to appear at hearing; decision of DOS to deny application for license as a real estate salesperson is confirmed upon applicant’s failure to appear at hearing

1017 DOS 02 Matter of Sorrentino – notary public; proof of qualifying experience; failure to appear at hearing; applications for renewal of salesperson’s license and commission as a notary public denied where applicant timely requests a hearing but fails to appear

77 DOS 03 Skinner v. DOS – failure to appear at hearing; proof of qualifying experience; failure to appear after proper notification of the time, place and purpose of the hearing is deemed a withdrawal of the request for a hearing; application for licensure denied for conviction of felony; application for license as a real estate salesperson denied

287 DOS 03 Greene v. DOS – failure to appear at hearing; request for a hearing to review proposed denial of application for salesperson’s license is dismissed where applicant fails to appear or to be represented at hearing; decision to deny application for salesperson license is confirmed

288 DOS 03 Chau v. DOS – failure to appear at hearing; request for a hearing to review proposed denial of application for salesperson license is dismissed where applicant fails to appear or to be represented at hearing; decision to deny application for salesperson license is confirmed

290 DOS 03 Bhambhani v. DOS – failure to appear at hearing; request for a hearing to review proposed denial of application for salesperson license is dismissed where applicant fails to appear or to be represented at hearing to review DOS’ decision to deny application for salesperson license; decision to deny application for salesperson’s license is confirmed

755 DOS 03 Eldamaa v. DOS - failure to appear at hearing; prior misconduct; applicant requested hearing to review DOS’s denial of application for licensure based upon Federal indictment; applicant’s failure to appear at hearing is deemed a withdrawal of the request for a hearing

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

1121 DOS 03 Matter of Evans - proof of qualifying experience; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; request for hearing to review proposed denial of license application dismissed where applicant fails to appear or to be represented at the hearing; application for salespersons license denied

1126 DOS 03 Matter of Milshtein - proof of qualifying experience; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; failure to appear or to be represented at hearing to review proposed denial of application deemed to be withdrawal of request for hearing; application for salespersons license denied

69 DOS 04 DOS v. Kalicharan - failure to appear at hearing; failure to pay judgment; ex parte hearing may proceed upon proof of proper service; failure to pay judgment is demonstration of untrustworthiness unless broker presents valid evidence of inability to pay; broker given two months to present proof judgment satisfied; broker fined $1,000.00; license suspended if broker fails to either timely pay judgment or fine

140 DOS 04 Matter of Bell - attorneys; failure to appear at hearing; prior misconduct; ex parte hearing may proceed upon proof of proper service; DOS proposed to deny license renewal because applicant resigned from the practice of law and was disbarred; failure to appear at hearing is deemed to be withdrawal of request for hearing; renewal of broker’s license denied

246 DOS 04 Matter of Vasiliu - proof of qualifying experience; failure to appear at hearing; prior misconduct; exparte hearing may proceed upon proof of proper service; DOS proposes denial of application for salesperson based upon applicant’s conviction of forcible touching; applicant’s failure to appear at hearing deemed a withdrawal of the request for a hearing; application for license as a salesperson denied

482 DOS 04 DOS v. Nesbitt - prior misconduct; proof of qualifying experience; failure to appear at hearing; material misstatement on application; ex parte hearing may proceed upon proof of proper service; applicant was convicted of felony criminal possession of a weapon, possession of stolen property, grand larceny and attempted grand larceny; applicant answered “no” on his real estate salesperson and broker applications that he had not been convicted of a felony or misdemeanor; applicant statutorily barred from licensure as he has not obtained an Executive Pardon, a Certificate of Good Conduct or a Certificate of Relief from Disabilities; broker’s license revoked

643 DOS 03 DOS v. Camino - failure to appear at hearing; unearned commission; brokers commission was unearned where lease transaction was properly cancelled as no rental had been effectuated; in setting penalty, ALJ considered facts that broker had previously been found to have demonstrated untrustworthiness for, among other things, failing to refund an unearned commission and was previously directed to pay a fine of $2,000.00; broker’s license suspended for one year, broker directed to refund the sum of $800.00

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

696 DOS 04 DOS v. Polanco - DOS fails its burden of proof; unlicensed activity; failure to appear at hearing; exparte hearing may proceed upon proof of proper service; DOS fails to prove that broker paid a fee for licensed activity to an unlicensed person where DOS merely produced two checks made payable to a licensed broker with notation of name of unlicensed person; DOS fails to prove that broker acted as a representative broker of a corporate broker without being so licensed where broker was merely listed as an officer of the corporation and did no more than write checks on the corporate account; broker operated an unlicensed corporate real estate brokerage business without obtaining a license in the corporate broker’s name; $500.00 fine

861 DOS 04 DOS v. Winiecki - failure to appear at hearing; failure to cooperate with DOS investigation; attempt to illegally enter premises to show rental units to prospective tenants without the property owner’s or building manager’s consent constitutes untrustworthiness and incompetence; ex parte hearing may proceed upon proof of proper service; salesperson failed to cooperate with DOS investigation by failing to respond to requests to attend meetings with DOS; salesperson’s license revoked

893 DOS 04 DOS v. Diaz - failure to pay judgment; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; failure to pay a judgment lawfully obtained and not overturned or stayed by a court of competent jurisdiction is a demonstration of untrustworthiness unless the broker presents valid evidence of his inability to pay; broker ordered to pay fine of $1,000.00 and provide proof of satisfaction of judgment or license is suspended

909 DOS 04 Matter of Medina - failure to appear at hearing; prior misconduct; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; DOS proposed to deny application for license as a real estate broker where in testimony in a disciplinary hearing involving licensees other than the applicant it was stated that the applicant permitted a real estate salesperson to operate a real estate brokerage business without the supervision for which the applicant was responsible; failure to appear at the hearing is deemed to be a withdrawal of the request for hearing; application for broker’s license denied

941 DOS 04 DOS v. Pohlig - proper business practices; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; broker licensed under one trade name conducted business under another trade name; broker relocated his business without notifying DOS, which results in automatic suspension of license; license suspended until compliance with notice to DOS on change of address and $1,000.00 fine for conducting business under an unlicensed trade name

133 DOS 05 Matter of Flanagan - failure to appear at hearing; prior misconduct; DOS denies application for licensure based upon Federal court indictment; failure to appear at hearing deemed to be a withdrawal of request for hearing; application for salesperson’s license denied

333 DOS 05 Matter of Edwards - prior misconduct; failure to appear at hearing; DOS proposed to deny applicant’s license as a real estate salesperson based upon felony convictions of forgery and filing a false instrument; applicant was granted a certificate of relief from disabilities; applicant’s failure to appear at hearing is deemed a withdrawal of her request for a hearing; application for a real estate salesperson’s license denied

510 DOS 05 Matter of Edwards - failure to appear at hearing; prior misconduct; re-opening; matter re-opened on request for new hearing based upon failure to receive notice of hearing; ex parte hearing may proceed upon proof of prior service; failure to appear twice after timely request for hearing deemed a withdrawal of the request for a hearing; proposed denial based upon felony convictions is final

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

541 DOS 05 DOS v. Capone - failure to appear at hearing; re-opening; prior misconduct; salesperson failed to timely execute and return settlement agreement, the offer of settlement was withdrawn and matter noticed for re-opening; salesperson was convicted of conspiring to collect extensions of credit by extortionate means, a federal felony; federal felony conviction, absent an executive pardon or certificate of good conduct or relief from disabilities, creates and absolute bar to licensure; salesperson’s license revoked

753 DOS 05 Matter of Sandstrom – proof of qualifying experience; failure to appear at hearing; DOS proposed to deny application for broker’s license based upon experience allegedly gained in negotiating 28 commercial leases where supporting documents supplied by applicant showed that transactions were in negotiation of licenses not leases; failure to appear at hearing deemed to be withdrawal of request for a hearing; application for license as a real estate broker is denied.

23 DOS 06 DOS v. Hernandez – prior misconduct; automatic revocation upon felony conviction; material misstatement on application; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; salesperson pled guilty to felony charges of conspiracy to launder money and conspiracy to distribute cocaine; salesperson stated on on-line application for renewal of her license that she had not been convicted of a crime; no evidence presented to show salesperson was granted an Executive Pardon, Certificate of Good Conduct or Certificate of Relief from Disabilities; salesperson’s license revoked.

169 DOS 06 In the Matter of Muto- attorneys; prior misconduct; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; applicant for salesperson’s license was disbarred from the practice of law for gross neglect of his clients’ interests, misuse of trust funds and a pattern of dishonesty; disbarment creates a rebuttable presumption of untrustworthiness and incompetency which may be overcome through the provision of additional information and materials; applicant has clearly not established that he is trustworthy; application for license as a real estate salesperson denied

511 DOS 06 DOS v. Parisien- proof of qualifying experience; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; applicant failed to submit proof of compliance with continuing education requirements and may not properly be allowed to retain his license until he does so; in the absence of an appearance by the respondent and response by him to DOS’s correspondence, DOS has failed to produce proof that respondent failed to comply with the continuing education requirements and lied about it; salesperson’s license suspended until he provides proof of compliance with education requirements

538 DOS 06 DOS v. Brannen- appraisers; proof of qualifying experience; failure to appear at hearing; ex partehearing permissible upon proof of proper service; real estate appraiser assistant affirmed on his renewal application that he complied with the continuing education requirements; in response to DOS follow up letter confirming compliance with continuing education requirements, applicant responded that he had not completed the continuing education requirements; applicant failed to appear at hearing or present any proof as to the “extenuating circumstances” for his not completing the continuing education; almost a year elapsed since the expiration of applicant’s previous renewal and applicant still has not taken the requisite continuing education; license as a real estate appraiser assistant revoked

539 DOS 06 DOS v. Iaccarino- appraisers; proof of qualifying experience; failure to appear at hearing; ex partehearing may proceed upon proof of proper service; material misstatement on application; applicant for renewal of real estate appraiser license affirmed that he had complied with the continuing education requirements; applicant failed to respond to DOS’s request for proof of compliance; license as a real estate appraiser assistant revoked

546 DOS 06 DOS v. Brickell- proof of qualifying experience; material misstatement on application; failure to appear at hearing; ex parte hearing permissible upon proof of proper service; salesperson affirmed on his renewal application that he had completed the required continuing education; in response to DOS requests for proof of completion of continuing education requirement, applicant stated in letter to DOS that he believed that he had completed the continuing education requirement and was contacting the school to obtain a record thereof; applicant failed to provide proof of completion of the continuing education requirement; license as a real estate salesperson revoked

547 DOS 06 DOS v. Barrese- proof of qualifying experience; material misstatement on application; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; applicant failed to provide proof that she had completed the mandatory continuing education requirements upon DOS’s request; license as a real estate salesperson revoked

548 DOS 06 DOS v. Meritz- proof of qualifying experience; material misstatement on application; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; applicant failed to provide proof that she had completed the mandatory continuing education requirements upon DOS’s request; license as a real estate salesperson revoked

550 DOS 06 DOS v. Fellrath- appraisers; proof of qualifying experience; failure to cooperate with DOS investigation; DOS fails its burden of proof; failure to appear at hearing; applicant affirmed on his renewal application that he had completed the required continuing education; applicant failed to respond to DOS letters requesting proof of completion of continuing education requirement; applicant failed to respond to DOS demands for proof of continuing education; in the absence of any replies from applicant, DOS failed to prove that applicant did not take the required continuing education courses and that charge is dismissed; applicant failed to produce evidence of satisfactory continuing education requirements; license as a real estate appraiser assistant revoked

619 DOS 06 Matter of Elshani- prior misconduct; failure to appear at hearing; DOS advised applicant that it proposed to deny her application for a real estate salespersons license because of a conviction to Petit Larceny, a class A misdemeanor; applicant failed to appear at hearing and therefore applicant is deemed to have withdrawn her request for a hearing; more than 35 days have elapsed since applicant was advised of the proposed denial and therefore DOS’s decision to deny her application is final; application for license as a real estate salesperson denied

730 DOS 06 DOS v. Ali- failure to cooperate with DOS investigation; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; proper business practices; broker received as a deposit on the rental of an apartment the sum of $2,550.00; when the rental was not consummated, broker issued the prospective tenant a refund check which was subsequently dishonored; broker violated its fiduciary duties by failing to properly conserve the deposit monies; broker submitted a renewal application using the address from which it had previously moved; broker’s license had been suspended by reason of broker having relocating without notifying DOS; DOS fails to establish broker failed to cooperate with investigation as DOS offered no evidence showing that DOS’s investigator was ever able to contact the broker; broker’s license revoked

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

746 DOS 06 DOS v. Rossi- notary public; failure to appear at hearing; broker previously signed a consent order in which he admitted that he instructed prospective tenants to sign a rental agreement which did not contain apartment or landlord information, agreed to pay restitution in the amount of $1,106.83, and that failure to comply fully and in a timely fashion with any provision of the consent order would constitute a default which would result in an immediate revocation of the broker’s license and notary commission; broker provided complainant with a copy of a teller’s check for the restitution which purportedly had been mailed to an old address; broker was advised of the new address and said on several occasions that he would mail a replacement check but failed to do so; despite being given every chance to comply with the restitution provision of the consent order, broker failed to comply; conduct underlying the admission in the consent order constituting untrustworthiness and incompetency and being the kind of misconduct which reflects negatively on broker’s ability to act properly as a notary public, license as real estate broker and commission as a notary public are revoked

843 DOS 06 DOS v. Rubino- proof of qualifying experience; material misstatement on application; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; salesperson affirmed on his renewal application for license as a real estate salesperson that he had completed the requisite continuing education; salesperson failed to respond to DOS request letters to provide proof of compliance with the continuing education requirements; salesperson failed to submit proof of compliance with the continuing education requirement and may not properly be allowed to retain his license until he does so; in the absence of an appearance by salesperson or a response by him to its correspondence, DOS has failed to provide proof that the respondent failed to comply with the continuing education requirement and lied about it on his application and that charge is dismissed; salesperson’s license revoked

844 DOS 06 DOS v. Zaremba- appraisers; proof of qualifying experience; failure to appear at hearing; ex partehearing may proceed upon proof of proper service; real estate appraiser assistant failed to provide proof of satisfactory completion of the continuing education requirements; in the absence of any replies from the respondent, DOS has failed to prove that the respondent did not take the required continuing education courses and that charge is dismissed; license as a real estate appraiser assistant is revoked

993 DOS 06 Matter of Donaldson – appraiser assistant, continuing education, failure to appear, opportunity to settle, DOS fails burden of proof due to absence of reply from respondent, as to continuing education, applicant fails to produce proof of satisfactory completion

2 DOS 07 Matter of Pinger – appraiser, incorrectly measurement, gross overestimate of value, failure to appear, revocation

1343 DOS 07 Matter of Campbell-Appraiser Assistant; adjournment of hearing; request denied due to improper appraisal; fraudulent representation of being properly licensed, and failure to prove 1 year of lawful qualifying experience; applicant failed to appear and fails to meet burden of proof; certification denied

1345 DOS 07 Matter of Wenger- Appraiser; audit of continuing education; failure to respond is willful misconduct; revocation

318 DOS 08 Matter of Cohen – salesperson; c&d violation; no testimony from complainant at hearing; complaint dismissed

852 DOS 08 Matter of Conley – salesperson application; prior revocation; failure to appear; license denied

1259 DOS 09 Matter of Daimler – broker; qualifying experience; DLS request for further information; reduce points under 19 NYCRR Part 179; failure to appear at hearing; denial of license

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