4. Amendment of Complaint

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

24 DOS 95 Matter of Seplow - disciplinary charge jurisdiction where licensee's renewal has been previously denied; proof of service of process; agency relationship and duties; fraud in sale of cooperative apartment, including false information about particular sale and willful non-disclosure of material information; failure to obey buyer's obvious intent to have deposit treated as funds to be held in escrow as payments to seller; conversion; rules applicable to supplemental pleadings - absent surprise or prejudice, motion to file and serve could be granted on day of hearing, but here respondent doesn't appear, so supplemental complaint dismissed without prejudice; DOS fails its burden of proof as to extortion and retention of unlawful commission and unauthorized practice of law; when respondent became optionee to purchase subject matter, agency relationship ceased to exist; fiduciary duty precludes respondent from acting simultaneously as agent and principal in a transaction; restitution of $35,000 deposit plus interest at legal rate for judgments

22 DOS 95 Matter of Tenteromano - complaint charges failure to obtain disclosure notices from tenant, rather than failure to obtain acknowledgments or to file declarations of refusal; complaint not amended to conform to proof as single exchange in hearing; not sufficient litigation of issue to warrant an amendment; lack of prior notice

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

2 DOS APP 97 (207 DOS 96) DOS v. ERA Marland Real Estate - appeal to Secretary of State; amendment of complaint; services of translator; in absence of specific procedures in SAPA or DOS regulation, proceedings are to be conducted pursuant to the CPLR; denial of motion to amend complaint reversed where no allegation or determination that respondent’s rights will be substantially prejudiced or the proceeding will be inordinately delayed, or that the proposed pleading is insufficient or lacks merit; in absence of specific criteria in statute or regulation, interpreter offered by a party for its own witness should be accepted by ALJ after ascertaining that the witness and interpreter are able to understand each other, and swearing the interpreter to translate accurately

378 DOS 00 Matter of DOS v. Ali - amendment of complaint; disclosure of agency relationship; DOS may not amend its complaint to conform to the proof where the issue sought to be added was not fully litigated (failure to provide agency disclosure form); broker earned his commission for finding an apartment for a client when he obtained for that client a lease to an apartment which the client and landlord executed; broker not liable to client for apparent dishonesty of landlord and/or landlord’s managing agent (alleged bait and switch); charges dismissed

720 DOS 05 Matter of Conley - proof of qualifying experience; amendment of complaint; hearsay; supplemental complaint; consolidation of hearings; DOS proposes to deny salesperson’s application for a brokers license based upon lack of proof of qualifying experience; hearing continued to allow applicant to file additional information with DOS; DOS thereafter moves to file an amended complaint alleging fraudulent documentation submitted in support of license application; tribunal deems State’s amended complaint as a supplemental complaint because it brings to the notice of both the tribunal and the applicant events alleged to have occurred since the pleading sought to be supplemented and the complaint both alleges an allegation and seeks a relief not alleged or sought in the original pleading; motion for leave to supplement the pleadings is granted; examination of 72 documents during hearing out of 1,848 documents submitted by applicant establishes that applicant’s testimony concerning the documents is willfully false on the material issue of experience and the tribunal finds testimony not credible and considers all documents submitted to be false; applicant failed to prove he possessed the experiential prerequisite for a license as real estate broker; applicant submitted documents containing false information and false statements concerning the material issue of experience in support of his application; application for a license as a real estate broker denied and real estate salesperson’s license revoked.

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