29. Incompetency v. Untrustworthiness

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

CRC #98-1538 Matter of DOS v. Narain, Consent Order - misrepresentation of rental amount in letter to Department of Social Services; $500.00 fine

CRC #98-2858 Matter of DOS v. Esquivel, Consent Order - incompetence; selling agent occupies residence subject of a sale transaction prior to the closing and without the express consent of the owner; $500.00 fine

770 DOS 03 DOS v. Manhattan Living Inc. - DOS fails its burden of proof; incompetency; DOS fails to prove by substantial evidence that broker misrepresented facts, exacted an unconscionable commission, retained an unearned commission and acted as an undisclosed dual agent; DOS’s case in chief primarily presented through testimony of investigator who never met or interviewed individuals in person; broker demonstrated incompetency by negligently calculating amount of commission refund; corporate broker to refund $1,758.75

986 DOS 06 DOS v. Valerio- appraiser; negligence and incompetence; first appraisal inaccurate and misleading; no evidence of collusion or willful inflation of value to reach a predetermined amount; 3 month suspension

1009 DOS 06 Matter of Younge – salesperson managed real estate and collected rents without broker knowledge (RPL §440[3]), request for or on behalf of broker, failure to account, restitution, 6-month suspension

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

3 DOS 07 Matter of Clark – failure to refund deposit, bad check, equivocal evidence on agency status and disclosures, untrustworthiness, restitution and $1,000 fine

6 DOS 07 Matter of Kent – cease-and-desist, previous business in Nassau Co., unaware of c&d list in Queens, reprimand

135 DOS 09 Matter of Kaleck- broker misconduct, untimely request for adjournment (19 NYCRR §400.11); false advertising of Century 21 Franchisee; after injunction; misrepresentation; refused to release principal from listing agreement; failure to keep appointment and misstated that home off the market; suit for unearned commission; failure to cooperate in investigation; failure to pay judgment without proof of inability to do so; predatory conduct; revocation

513 DOS 07 Matter of Balfour- appraiser; failure to complete continuing education; inadvertent noncompliance as result of misunderstanding, not untrustworthiness or incompetence; complaint dismissed

516 DOS 07 Matter of Reich- appraiser, failure to complete continuing education, adequate explanation of problem with on-line course, part of which was beyond her expertise and required additional information, which she procured and then completed the course; complaint dismissed

1117 DOS 07 Matter of Norris- Appraiser; inaccurate and misleading report; gross overstatement of value; misleading due to negligence (attempt to justify supposed market trend), not intent to deceive; three months suspension

1163 DOS 07 Matter of Posa- Broker; fraudulent advertisement; false statement on renewal; failure to reveal revocation of insurance license; false advertisement stating a NYS broker is associated with ads without broker consent; fraudulent inducement to make deposits; failure to refund deposits; failure to pay judgment; commingling funds; untrustworthy action as insurance broker; tends to establish unfitness; revocation and requirement to pay judgment if ever reapplies for real estate license

1344 DOS 07 Matter of Winslow- Appraiser; inaccurate and misleading report which overstated value; refusal of opportunity to settle; 2 months suspension

1373 DOS 07 Matter of Owner’s Club Realty Corp.- Broker; apartment rental; entitlement to commission upon bringing about meeting of the minds; improper use of rental agreement which misstates law in some situations; incompetency; $500.00 fine; dismissal of charges of retaining unearned commissions and requiring the signing of a statement allowing an unearned commission

1683 DOS 07 Matter of Scott- broker; unauthorized practice of law; gross untrustworthiness in inducement to execute deed; failure to account; false denials; revocation and required to make restitution if reapply for licensure

995 DOS 08 Matter of Island Associates – broker; incompetency in collection of commission not payable by seller; repayment under advice of counsel; dismissal of 175.7 as two separate transactions involved; false testimony and failure to cooperate; incompetency in drafting commission bill which failed to state to whom it was directed; $6,000 fine by deadline or 6-month suspension until paid

1497 DOS 08 Matter of Massaro – salesperson; CE: failure to timely complete; completion one month after renewal date; incompetency; $250 fine; prehearing offer of $2,000 fine

1 DOS 09 Matter of Henriques – appraiser assistant; incomplete report; incompetence; 4-month suspension

143 DOS 09 Matter of Sebastian – broker; dismissal of charge of wrongful procurement of exclusive agency agreement; backdating documents §175.12; duplicate original documents; unearned fee; obligation to confirm whether there was existing buyer representation agreement; $1,000 fine; $2,000 fine for untrustworthy conduct in failing to confirm existence of buyer agency and subjecting client to unearned commission; restitution of judgment by confession

1010 DOS 09 Matter of Jones – failure to pay child support; poor driving record; incompetency regarding renewal application; suspended until pay child support arrears

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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