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10. Building Code/Certificate of Occupancy/Zoning

27 DOS 92 Matter of DOS v. Rabizadeh - broker advertised apartment with finished rentable basement, but certificate of occupancy does not allow renting a basement. Advertisement has effect of encouraging violation of local zoning and occupancy laws. Broker deemed untrustworthy - sanction $1,000 fine or alternative 2-month suspension

29 DOS 92 Matter of DOS v. Lien Chin Chang - a broker charged with advertising or offering for sale or rental of premises for which no certificate of occupancy has been issued, but DOS fails to offer evidence with regard to certificate of occupancy. Complaint dismissed for failure of proof

Case No. 222 Matter of DOS v. Lewis, Consent Order - "no contest" of allegations of offer to rent and obtain tenant for an apartment inconsistent with certificate of occupancy and contrary to local zoning laws. Penalty: $250 fine, refund of commission $225, and payment for transcript of proceedings ($80)

103 DOS 92 Matter of DOS v. Clark - advertising of furnished basement, when certificate of occupancy allowed cellar (not usable as living space) - $500 fine or 1-month suspension - reversal and annulled by Supreme Court

123 DOS 92 Matter of DOS v. Lopez - rental of apartments that were unavailable or illegal. Revocation

128 DOS 92 Matter of Contempo - advertising of two-family house with 3-room walk-in basement. DOS fails to prove kitchen and bath in basement was illegal (c/o is ambiguous and building plans for this 1962 house missing from City Dept of Bldgs.)

151 DOS 92 Matter of Target Realty - advertisement of 3-family house - DOS fails to link ad to a specific listing

49 DOS 93 Matter of DOS v. Scelfo's Captree Realty - failure of proof of misleading advertising - must show ads improperly characterize properties for which C/O issued and the ad misrepresented number of occupancies allowed by law

94 DOS 93 Matter of Parenti - incompetency in renting apartment in illegal two-family house without checking certificate of occupancy; unreasonable to rely on owner's claim of two-family status without making reasonable inquiry; restitution of rental commission

121 DOS 93 Matter of DOS v. Jacob - DOS fails to prove licensee knew, or failed to take reasonable steps to obtain knowledge regarding the illegality of rentals under the zoning ordinance; where broker is aware that particular area is zoned one-family, must make reasonable inquiry as to what use is being made of other floors; commission is unearned where rental is in fact illegal; ALJ rejects as incredible the broker's self-serving testimony that DSS did not want the commission returned; 2 representative brokers each fined the amount of the unearned commission ($750) for failing to return; ALJ rejects SAPA 301[1] claim of failure to hold a hearing within a reasonable time due to lack of demonstration of prejudice and refuses to consider an affidavit submitted by the licensee's counsel, as leave was not sought at the hearing to submit a response to the affidavit DOS was given permission to submit

110 DOS 93 Matter of DOS v Century 21 Dallow Realty - individually licensed broker acting under name and supervision of sponsoring broker must get "associate broker" license (RPL §440-a) and is treated as salesperson (RPL §440[2]). Broker who allows him/her to work without associate broker license is liable (RPL §442-c) for unlicensed activity (RPL §440[2] and 440-a); claimed lack of knowledge of change in law or failure of DOS to advise thereof is ineffective; advertisements must give honest and accurate description of property (citing 1987 Opinion Letter [Sumber]); failure of proof that broker knew or should have known advertisement misrepresented lawful occupancy of property

CRC #413 Matter of DOS v. Jacabacci, Consent Order - payment of buyer's deposit to seller prior to agreement on terms of sale; failure to refund deposit in accordance with terms of binder; inadequate sales agreement; failure to provide RPL §443 disclosure notice; improper advertising of "possible mother/daughter" although permits for two-family use had not been obtained; $750 fine on sales associate

CRC #275 Matter of DOS v. Baker, Consent Order - misleading advertising; conversion of deposit monies; $2,500 fine and restitution of $20,000 under payment schedule enforced by confession of judgment

72 DOS 94 Matter of DOS v. Sampson - failure to prove that licensees neglected to provide RPL §443 disclosure notice or the retention of a fee for renting an illegal apartment

65 DOS 95 Matter of DOS v. Dawns Horizon Realty, Inc. - advertising; zoning; did broker know or have reason to know of violation; broker's conduct effecting or encouraging violation of zoning and occupancy regulations demonstrates untrustworthiness and incompetency; refund deposit, suspension; relocation of office without filing change of address violates RPL §441-a[5]; merely taking phone calls does not require licensure, broker not required to file change of association for salesperson, RPL §441[1][a]; failure to give prospective tenant disclosure form, violation RPL §443, failure in such case to get acknowledgement of receipt not violation

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

1027 DOS 09 Matter of Bryant – investigate rental of apartment without C/O; unearned commission; no relicensure without paying $1,872 with interest and fine of $1,000

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