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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Fourth quarter Legal Lines now available

The fourth quarter 2019 edition of NYSAR’s Legal Lines is now available online at This edition covers new DOS proposed regulations, emotional support animals in housing, Landlord discrimination and more. Learn more