46. Supplemental Complaint

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

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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