5. Amendment of pleading to conform to the proof

40 DOS 91 Matter of DOS v. DeMaso - motion to amend complaint to conform to proof granted

37 DOS 92 Matter of DOS v. Marks - motion to amend changes granted

64 DOS 93 Matter of Laffey - distribution of Penny Saver violates non-solicitation order; advertisements did not contain language limiting the areas in which free appraisals were offered; negligence is incompetency, not untrustworthiness; representative broker fails to supervise; pleading amended to conform to proof; each advertisement constitutes a separate and distinct violation

128 DOS 93 Matter of DOS v. Vuksanaj - motion to conform pleadings to proof granted where (i) additional evidence wouldn't have been presented if the charge had been stated in the complaint and (ii) issue was actually litigated and was within the "broad framework of the pleadings"; broker's authorization to execute lease on behalf of landlord must be in writing to be valid (G.O.L. §5-703); no commission earned on void lease (due to lack of written authority for broker to sign for landlord); broker is undisclosed "double agent" - thus "fails to make clear" for which party he is acting (175.7); broker is not "managing agent" under NYC Rent Stabilization Code unless (i) broker has ownership or financial interest in property or (ii) performs managerial duties; separate escrow account (§175.1) not required when broker is not holding escrowed funds; holding funds overnight does not trigger requirement for escrow account (returned next day upon demand); unlicensed name used in commission agreement but lack of intent to mislead considered in mitigation; restitution of unearned commission

152 DOS 93 Matter of DOS v. Baird - individually licensed broker improperly conducts business under unlicensed name; failure to file termination of associate card; complaint amended to conform to the proof; failure of proof of dual agency

40 DOS 94 Matter of DOS v. Hearl - attempt to surrender license while charges are pending does not divest DOS of jurisdiction; amendment of pleading to conform to the proof granted; no additional evidence would be forthcoming and essential issue was litigated; conversion of deposits warrants revocation; violation of 175.1 if balance in escrow account falls below aggregate deposits to be held

13 DOS 95 Matter of Skydell - jurisdiction to adjudicate after expiration of license where eligible to renew; collateral estoppel as to fact findings by Division of Housing and Community Renewal; liability of broker for actions of partnership in which he was general partner irrespective of actual knowledge of wrongful acts; DOS not empowered to order restitution of illegal rent overcharges; failure to pay a fine may be challenged only in a subsequent disciplinary hearing; no direct liability for non-participation and un-involvement in corporate acts; no vicarious liability of corporate officers, directors or shareholders for wrongful acts of corporation; actual knowledge required for vicarious liability; broker presumed to know the law; failure to establish representative broker was directly responsible or vicariously liable for failure to disclose ownership interest in violation of 19 NYCRR §175.6; failure to deliver duplicate original of lease in violation of 19 NYCRR §175.12; retaining an unearned fee in violation of RPL §441-c; financial inability to pay judgments is good defense to charge of willful failure to satisfy judgment; efforts to meet obligations and refusal to file for bankruptcy demonstrate willingness to attempt to pay debts; pleading notconformed to change availing or failure of supervision, as these charges were not with in the broad composition of complaint and not actually litigated

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

26 DOS 95 Matter of Cepparo - complaint charges broker failed to provide disclosure form to tenant and to landlord and failed to obtain signed acknowledgments; evidence shows unnamed salesperson failed to do so; complaint does not charge broker is responsible for salesperson's failure or failure to properly supervise; as respondent was not present at hearing, pleading cannot be amended to conform to the proof; lack of notice; complaint dismissed

77 DOS 95 Matter of DOS v. Deppoliti, et al. - auctions; pleadings amended to conform to proof; individual proper party where license under non-corporate assumed name; obligation of honesty before fiduciary obligation upon agency; working farm improved by 1-4 family residence requires disclosure form under RPL §443 but is not governed by 19 NYCRR 175.24; false representation demonstrates untrustworthiness; failure to disclose back taxes demonstrates incompetency; complainant failed to establish unlicensed practice of law; buyers premium earned on acceptance of offer per contract; demand for unearned commission demonstrates untrustworthiness; failure to pay court costs equivalent to failure to pay judgment; failure excused due to reliance of attorney; revocation

83 DOS 95 Matter of DOS v. Loffredo - improper commission suit by broker; representative broker liable for forms used; unauthorized practice of law where sales agreement did not contain attorney's approval clause; collateral estoppel on issues of fact; pleadings amended to conform to the proof where no surprise or prejudice, and matters actually litigated; ready, willing and able purchaser not obtained when unable to obtain mortgage per sales agreement; release of listing agreement required where improperly procured

103 DOS 95 Matter of DOS v. Lana - fiduciary duty; vicarious liability; dual agency; breach of fiduciary duty where seller's agent advised buyer can purchase property for less than asking price; broker not liable without actual knowledge of misconduct or after notice retains proceeds therefrom; mutually dependent transaction did not arise creating improper double agency; amend pleadings to conform to proof; two month suspension results

242 DOS 96, Matter of DOS v. Devaney - duty to public; fraud; amendment of pleadings to conform to proof; collateral estoppel; burden of proof; vicarious liability; consideration of prior pleading and disciplinary actions; publication of misleading advertisement violates fundamental duty to deal honestly with the public; DOS fails to meet its burden to amend the pleadings to conform to the proof to include charge of the unauthorized practice of law; tribunal may sua sponte amend the pleadings to conform to the proof where issue has been fully litigated and is closely related to the stated charges; licensee engaged in acts of fraud and in fraudulent practices by knowingly making false factual representations with the intent to deceive and resulting in reliance and acting thereon; adverse decision in ethics hearing at local board not given collateral estoppel where licensee requested and was denied adjournment to allow for legal representation; DOS has burden to prove by substantial evidence the truth of the allegations in the complaint; corporate broker is bound by the knowledge acquired and is responsible for the acts committed by its representative broker; prior plea of nolo contendere and payment of fine considered in determining imposition of penalty; corporate and representative brokers’ licenses suspended for a period of one year


25 DOS 97 Matter of DOS v. Costello - amendment of pleading to conform to the proof; proper business practices;failure to pay judgment; pleadings may be amended to conform to the proof so long as an issue has been fully litigated and is closely enough related to the stated charges that there is no surprise or prejudice to the respondent; broker conducting business under name other than on license demonstrates incompetency; failure by broker to satisfy judgment demonstrates untrustworthiness; broker may be held liable for failure to satisfy judgment against corporation where broker controls the corporation; $750 fine and license suspension until judgment satisfied

189 DOS 99 Matter of DOS v. Naftal - listing agreements; deposits; unauthorized practice of law; vicarious liability; amendment of pleading to conform to the proof; improperly altering listing agreement without the consent or knowledge of principal to show the potential commission split with buyer’s broker to meet MLS requirements; preparing and submitting fraudulent MLS change notifications purporting to extend and alter listings; deposit of escrow funds into operating account; preparation of lease constitutes the unauthorized practice of law; pleadings may be amended to conform to the proof and encompass a charge not stated in the complaint where the issue has been fully litigated by the parties and is closely enough related to the stated charges that there is no surprise or prejudice to the respondent; continuing to offer properties for sale after preparation of forged listing extensions violates 19 NYCRR 175.10; DOS fails to establish violation of 19 NYCRR 175.12 for failure to provide copy of listing extension where extension was not authorized by principal; DOS fails to demonstrate demand for unearned commission where broker may have believed they were entitled to a commission; broker’s licenses suspended for one year and thereafter until such time as restitution in the amounts of $5,000.00 and $2,055.40 is made

618 DOS 00 Matter of DOS v. Sulaman - cease and desist; amendment of pleading to conform to the proof; complaint amended to conform to the proof where issue is fully litigated; compliant alleged violation of Reg. 175.17 for soliciting a listing when in fact what was solicited was the actual sale; cease and desist regulation applies to all licensed broker’s regardless of in what capacity they act; broker bound by cease and desist regulation even though he was acting as a purchaser of the property and not in his capacity as a real estate licensee; $500.00 fine

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

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

7 DOS 09 Matter of Furan – salesperson; unlicensed activity; breach of fiduciary duty; deposit and accounting; sua sponte amend pleadings to conform to proof; fraud; revocation; no reapplication unless restitution of $2,560 plus pay judgment with interest

360 DOS 09 Matter of Depass – associate broker; failure of proof of charge of failure to disclose prior business association and failure to cooperate; conduct as attorney is relevant to determining trustworthiness and competitiveness; amend pleading to conform to proof; failure by account; fraudulent mortgage transactions; sham to refinance; revocation

1051 DOS 09 Matter of Chuckran – salesperson; dismissal of charge of failure to return deposit; sua sponte amend pleading to conform to the proof, incompetency by misrepresenting “non-refundable fee” as deposit; $750 fine

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