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53. Unlicensed Activity

47 DOS 92 Matter of DOS v. Sekin - use of unlicensed name by broker (broker purchased firm and changed name) - $500 fine or 1-month suspension

32 DOS 92 Matter of DOS v. Fox - sales associate holds himself out as broker and works as independent broker after passing test, but prior to issuance of broker's license - salesperson's license revoked and application to become broker denied

38 DOS 92 - Matter of DOS v. Gelinas - broker allows sales associate to work out of unlicensed, out of state home - $500 fine

53 DOS 92 - Matter of DOS v. Cabello - broker knowingly permitted individual who passed test, but not yet licensed, to act as sales associate - $1,000 fine or 3-month suspension

153 DOS 92 Matter of Fishman - broker employed unlicensed salesperson and used unlicensed trade name - incompetency - $2,000 or 3-month suspension

157 DOS 92 Matter of Sutton - charge dismissed where salesperson's advertising postcard misstated her broker was a corporation (rather than an individual licensee), without broker knowledge. However, broker guilty of failure to supervise

158 DOS 92 Matter of Miles - sales associate affiliated with commercial broker, without broker's knowledge or constructive knowledge, engages in residential transaction and takes direct commission payment, not via broker (RPL §§440-a, 442-a)

32 DOS 93 Matter of DOS v. Mustari - acting as salesperson after expiration of license - failure to take qualifying course and to note term of license

Opinion Letter 93-19 (Thomas G. Mazzotta) - 5 member partnership of 1 attorney, 1 broker and 3 non-licensees; unlicensed persons can be members of partnership which is licensed as a real estate broker, just as unlicensed persons may be shareholders of a corporate real estate broker. However, salespersons may not be partners, just as they may not be shareholders in a corporation which is licensed as a real estate broker. Any partner who acts as a real estate broker under the name of the partnership (including the attorney) must be duly licensed as a broker

72 DOS 93 Matter of Reiback - charges dismissed regarding (i) failure to file termination notice with respect to inactive salespersons, (ii) permitting unlicensed person to act as salesperson; receptionist can take messages for licensees

90 DOS 93 Matter of Davis - broker required to use exact license name on signs; improper use of unlicensed trade name; prior violation; $500 fine or 1-month suspension

92 DOS 93 Matter of Bijur - licensee required to be licensed in the capacity under which he conducts business; individually licensed broker acts as associate broker without proper licensing, business card does not reflect licensed status; past discipline considered regarding penalty; $500 fine or 1-month suspension for corporation and representative broker; 1-month suspension for individual broker who failed to obtain associate brokerage license

93 DOS 93 Matter of Piper - failure to timely file change of address card; use of unlicensed name; charge of improper location of §175.24 explanation (on front of listing) dismissed, as property was vacant land; failure of proof re: disclosure of agency status; acting as associate broker without proper license; employment of salesperson whose license had expired

96 DOS 93 Matter of Ardelean - federal court decision is collateral estoppel re: housing discrimination (Open Housing Center tester); unlicensed activity by salesperson; failure to satisfy judgment without proof of inability to do so

102 DOS 93 Matter of Eisenhauer - salesperson transacted business as broker for her own account violates RPL §§440-a and 442-a and forfeits commission collected; subsequent licensure as a broker is immaterial for services were rendered when she was a sales associate; her broker is not entitled to commission either, as her activities as unlicensed broker are illegal, so no commission can be claimed

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

123 DOS 93 Matter of DOS v. Harrington - requests for adjournments must comply with 19 NYCRR §400.11; broker permits unlicensed salesperson to work; broker who fails to pay judgment without proof of inability is guilty of untrustworthiness; broker's failure to timely file termination of association notices not excused by claim of unhappiness with filing fee; prior discipline considered in imposing sanction; two-month suspension and continuing suspension until judgment is satisfied

124 DOS 93 Matter of DOS v. Kerr - sales associate failed to timely renew; negotiation of contract violates RPL §440-a; $1,000 fine or one-month suspension

CRC #400 Matter of Pozzanghera, Consent Order - failure to supervise in permitting use of trade name before being licensed and in permitting use of unlicensed branch office; failure to supervise associate brokers; improper licensure as representative broker when not a corporate officer; failure to execute termination of association cards; $7,000 fine

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

131 DOS 93 Matter of Sitterly - consolidate separate complaints where common questions of law and fact would serve the interests of justice and administrative economy; contracts are presumed to express parties' intention and effect is given to their plain words; broker can rely upon deposit clause providing for funds to be maintained in escrow or until mutual agreement of the parties; ALJ does not consider uncharged claim of use of form contract with mutually inconsistent provisions; unlicensed name (addition of franchiser's name to the licensed name) violation mitigated by absence of harm to public; reprimand and discontinue use of licensed name or obtain licensure of franchisee name; corporate broker vicariously liable for acts of representative broker

134 DOS 93 Matter of DOS v. Frantz - individually licensed broker fails to obtain an associate broker's license when affiliated with corporate broker; sponsoring broker fined $250; mitigating circumstances include lack of harm to public and inadvertent violation; reprimand to "associate broker"

136 DOS 93 Matter of DOS v. McCarthy - individually licensed broker fails to obtain an associate broker's license when affiliated with corporate broker; sponsoring broker fined $250; mitigating circumstances include lack of harm to public and inadvertent violation; reprimand to associate broker; consolidated separate complaint where common question of law and fact and would serve the interests of justice and administrative economy

141 DOS 93 Matter of DOS v. Pozzanghera - salesperson can't own voting stock or be officer of licensed corporation (175.22); separate escrow account required (175.1); unlicensed name; illegal to claim or retain commission for services while not properly licensed; failure to pay judgment; failure to file termination of association card; representative broker liable for illegal ads; revocation of broker's license discontinues salesperson's association per RPL §441-d

151 DOS 93 Matter of DOS v. Svoboda - individually licensed broker engaged in business under name of corporation must obtain license as associate broker or representative broker

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

147 DOS 93 Matter of DOS v. Feld - auctions; auctioneer requires real estate license; improper for salesperson to incorporate and act as auctioneer (without a broker's license) and thereby receive commission splits; unintentional violation based upon faulty advice, therefor $500 fine, rather than revocation; lack of proof of failure to supervise

142 DOS 93 Matter of Tannenbaum - corporation which manages real property, collects rents and cooperative apartment building maintenance charges requires a license; unlicensed salesperson and unlicensed corporation precludes legitimate claim for brokerage fee; settlement of civil suit between tenant and unlicensed corporation is not a defense to charge of unlicensed activity; corporation's failure to pay judgment where individual respondent is not a party is not considered in disciplinary case against said individual; deposit monies should be returned, as no viable lease was entered into and no lawful brokerage commission could be claimed; restitution of entire deposit ordered (civil action settlement provided for return of $600 of $900), as no licensed real estate services were rendered; however, retention of deposit is not conversion or illegal retention of deposit monies, but is unlawful claim for commission by non-licensee; broker's failure to file termination of association notices violates RPL §441-a(5); respondent's cooperation during investigation considered, as is testimony that action resulted from lack of knowledge and negligent, not deliberate attempt to violate licensing law

CRC #454 Matter of DOS v. Valladares, Consent Order - payment of buyer's closing costs out of commission proceeds is unlawful commission splitting RPL §442; unlicensed business name; failure to make clear agency relationship; restitution of $9,600 plus $1,100 interest; fine of $1,000 or suspension until compliance

9 DOS 94 Matter of DOS v. Shane - motion for pre-hearing discovery beyond SAPA 401(6) is denied; rules re:subpoenas in administrative proceedings reiterated; proper procedure of reserving right to file post-hearing memorandum of law; MLS form listing agreements are acceptable; individual license not sufficient to allow acting as representative of corporate licensee -need affiliated license; agreements procured by individual acting under name of firm but without affiliated license are illegal and unenforceable - no brokerage fee can be claimed; misrepresentation and execution of unauthorized extension; misrepresentation of law (distinction between canceling agency authority and abiding contract rights); RPL §443 controls the disclosures required of licensees; subsequently licensed corporation not vicariously liable; failure to provide copy of agreement (175.12); inadvertence considered in determining penalty

6 DOS 94 Matter of DOS v. Eagle Financial Services - motion to amend complaint; procedural due process; motion for severance; motion for stay of proceedings; adjournment; once issued, license is valid even if procured by fraud and voidable only in quasi-judicial proceeding; negotiating of mortgage loan requires real estate license; corporate licensee vicariously liable for conduct of unlicensed salesperson; failure to return and conversion of deposits

CRC #441 Matter of DOS v. Sopher, Consent Order - unlicensed salesperson negotiates rental; failure to file change of association card; restitution ($925) and $500 fine

CRC #493 and #497 Matter of DOS v. Siony, Consent Order - illegal retaining of deposit; retaining of unearned commission; failure to make clear (175.7); unlicensed salesperson; restitution ($2,888 and $663) and $5,000 fine

94 DOS 94 Matter of DOS v. Pilato - conduct of business under unlicensed name (RPL §441[1]); confusingly similar name (175.18); change of association notice required regarding change from and to licensed broker, not an unlicensed entity; failure to prove by substantial evidence that corporate broker is liable for violations, as the representative broker was not acting as the agent of the corporation when the violation occurred and the corporate broker did not retain the benefit of the wrongful act

99 DOS 94 Matter of DOS v. Burgstrom - individually licensed broker who conducts business under name of a licensed corporate broker must have affiliated license; without associate broker license, such conduct is unlicensed activity; inadvertent violation without any intent to circumvent licensing law; reprimand

50 DOS 95 Matter of Romano - relocation of principal business address without notice results in automatic suspension; illegal to demand and receive commissions while licensed salesperson; restitution of illegal commissions; failure to settle, so proper to impose higher fine

CRC #95-0469, Matter of DOS v. Maczko - Consent Order - duty to supervise sales associates; unlicensed activity; unauthorized practice of law; broker allows unlicensed person to participate in a regulated real estate transaction, $377.78 fine, $750.00 restitution plus interest; licensed salesperson engaged in the unauthorized practice of law, sixty-day suspension; broker and salesperson required to attend Law of Agency course

276 DOS 96 Matter of DOS v. Murat - brokers demonstrated incompetency where they continued to engage in regulated activity after their licenses were automatically suspended for failure to comply with the terms of a consent order; brokers’ belief that licenses not suspended due to their making efforts to comply with consent order considered and results in finding of incompetency rather than untrustworthiness; suspension extended for additional three months

CRC #96-0361, Matter of DOS v. Munro - Consent Order - collection of real estate commission at a time when not licensed; pay restitution of $2,300; 90 day license suspension

80 DOS 97 Matter of DOS v. Robin - laches; reliance on attorney advise; mortgage applications; real estate brokers license needed to negotiate loan on unimproved property; mortgage broker license only applies to residential mortgage loans; disclosure of ownership interests; dual agency; disclosure of agency relationships; bankruptcy; to establish defense of laches, respondent must show substantial prejudice arising out of the delay such that the delay significantly and irreparably handicapped it in preparing a defense; reliance on attorney advise is a valid defense and may relieve respondent of liability; DOS has jurisdiction to review licensee’s conduct for untrustworthiness or incompetency even when not acting in licensed capacity; Reg. 175.7 requires a broker to make it clear for which party he is acting; licensee may act as a dual agent only upon full and fair disclosure and with the informed consent of the parties; it is not necessary that there be a showing of injury or actual fraud for a finding of improper conduct regarding dual agency so long as the licensee fails to obtain the principals informed consent; licensee may act as agent and principal in same transaction on disclosing all relevant facts to principal; broker may be required to return monies, with interest, where broker was not entitled thereto; discharge of broker’s debts in bankruptcy prevents DOS from ordering refund, however, DOS may impose other sanctions; corporate broker is responsible for acts of its representative broker within actual or apparent scope of authority; sanctions cannot be applied against entity no longer licensed, which has been unlicensed for more than two years and has no automatic right of renewal; individual broker’s license suspended for 6 months

86 DOS 97 Matter of DOS v. Samarel - unlicensed activity; requirement of restitution; administrative hearing may be held ex-parte where there is evidence that notice of the place, time and purpose of the hearing was properly served; salesperson demonstrates extreme untrustworthiness when he removes personal property from home without owner’s consent; salesperson demonstrates incompetency when he engages in regulated brokerage transactions during period when license expired; license revocation; restitution of misappropriated property and return of commissions received for activities when unlicensed, with interest, as precondition to application for relicensure

CRC #95-0486 Matter of DOS v. Ogden, Consent Order - broker allows individual to act and hold herself out as a real estate broker associated with him at such time when she was not so licensed; restitution of $2,330.00; $1,000 fine

317 DOS 97 Matter of DOS v. Bhagwandin - due process; unlicensed activity; failure to appear at hearing; ex partehearing is permissible where there is evidence of proper notice of hearing; broker which has an unlicensed salesperson associated with it is guilty of a misdemeanor; representative broker is obligated to supervise the activities of the corporation she is licensed to represent; representative broker is responsible for the unlicensed activities of unlicensed salesperson; $750 fine

CRC #96-3788 Matter of DOS v. Poteat, Consent Order - holding self out as a licensed salesperson without being duly licensed in an apartment rental transaction; $200 fine

318 DOS 97 Matter of DOS v. McDermott - apartment information vendors; unlicensed activity; collateral estoppel; unlicensed operation of apartment information vendor business; steering; license as a real estate broker does not permit engaging in the business of apartment information vendor; broker acted in violation of consent order and declaratory ruling (92-43); broker engaged in conduct of racial steering; res judicata does not apply to consent judgment in the United States District Court, Eastern District of New York where primary relief sought by DOS (license revocation) was not available in prior action; collateral estoppel is not applicable for a consent judgment unless the underlying factual issues have been resolved; license revoked

CRC #97-0326 Matter of DOS v. Ben-Ezry, Consent Order -- licensee engaged in the business of acting as a real estate salesperson when not licensed to do so; surrender of broker’s license; eligible to apply for salesperson’s license in 60 days but shall not submit an application for a broker’s license for a period of 1 year

CRC #97-3408 Matter of DOS v. Eli Miller Management Co., Consent Order -- respondent engaged in the business of real estate brokerage without being licensed to do so; respondent to cease-and-desist from engaging in such activity until and unless duly licensed

CRC #98-2299 Matter of DOS v. Hecht, Consent Order - licensee pleads nolo contendere to employing an unlicensed individual in a regulated real estate transaction; $1,000.00 fine, restitution of $500.00 plus interest

83 DOS 99 Matter of DOS v. Dhanraj - failure to appear at hearing; fraudulent practices; prior misconduct; forgery; unlicensed activity; ex parte hearing is permissible upon proof of proper service; conviction of felony (larceny in conducting real estate transactions) bars licensure as salesperson where no proof licensee has been granted an executive pardon, a certificate of relief from disabilities, or a certificate of good conduct; licensee engaged in fraudulent practices by brokering transactions without the knowledge of his supervising broker and defrauding clients out of deposit money; unlawfully holding self out to be a real estate broker without first procuring a license therefore; use of a forged license is an aggravating factor; DOS fails to prove licensee conducted a regulated real estate transaction while not licensed to do so; salesperson’s license revoked

CRC #97-1956 Matter of DOS v. Ogunleye, Consent Order - failure to return security deposit constituted retained unearned commission; unlawfully prematurely holding self out as real estate salesperson; $500.00 fine

CRC #98-2875 Matter of DOS v. Fischer, Consent Order - broker obtains listing agreement through real estate activities of unlicensed individual; $3,000.00 fine

CRC #99-0370 Matter of DOS v. Cadet, Consent Order - unlicensed activity by acting as a real estate broker in a regulated transaction although only licensed as a salesperson; three months license suspension

CRC #99-1093 Matter of DOS v. Bradt, Consent Order - broker engaged in unlicensed real estate brokerage activity and demanded and retained real estate commissions while not licensed as a broker; $1,000.00 fine and requirement that broker return all commissions earned through unlicensed activities

1 DOS 00 DOS v. Ogunleye - deposit; failure to appear at hearing; jurisdiction; unlicensed activity; ex parte hearing may proceed upon proper notice; DOS retains jurisdiction where the broker was licensed when (i) the disciplinary action was commenced and when the hearing was held, and (ii) when the broker was eligible to automatically renew the prior license; retention of deposit monies after principal demands refund constitutes a larceny and constitutes a fraudulent business practice; $1,000.00 fine

95 DOS 00 DOS v. Peattie - salesperson engaged as a consultant for advisory services to home buyers relative to construction of new homes, including locating and showing lots for sale and assisting in negotiating purchase and sale contracts for a fee, constitutes regulated real estate activity; salesperson may not engage in regulated real estate business for his own direct interest or benefit; providing services illegally forecloses any legitimate claim for a fee; restitution ordered in the amount of $4,500.00 to two separate clients of salesperson

CRC #97-1483 Matter of DOS v. Narain - broker allowed unlicensed individual to act as a real estate salesperson relative to an apartment rental; $750.00 fine

CRC #99-0957 Matter of DOS v. Bell, Consent Order - broker permits sales associate to engage in unlicensed real estate activity in a regulated transaction; $1,000.00 fine and refund of commission in the amount of $8,525.00

CRC #99-2400 Matter of DOS v. Brillemgourg, Consent Order - acting in an unlicensed capacity in a regulated real estate transaction; $500.00 fine and restitution in the amount of $1,238.92

CRC #99-2635 Matter of DOS v. Graney, Consent Order - broker employs salesperson whose license has expired and engages in regulated transaction; reprimand and ordered to attend five hour course regarding real estate brokers’ responsibility with respect to execution of legal instruments and documents

CRC #99-3137 Matter of DOS v. Wong, Consent Order - broker employs an unlicensed salesperson in a regulated transaction; $500.00 fine and restitution in the amount of $1,000.00

3 DOS APP. 00 (95 DOS 00) Peattie v. DOS - DOS determination to require salesperson to pay restitution to non-party complainants and retain license is reversed in part and modified; engaging in regulated real estate brokerage business in an unlicensed name and at an unlicensed business address; operation of business and business procedures designed to circumvent licensing law in the name of a “consulting business”; salesperson allowed toretain payment of fees for unregulated activity and required to disgorge fees for regulated services; all licenses revoked until such time as restitution is paid

668 DOS 00 Matter of DOS v. Streich - duty to supervise sales associates; unlicensed activity; license required for individual who offered apartment for rent, showed it, collected the deposit and commission and initialed and/or signed certain documents; not required that person engaged in actual negotiations; broker is guilty of a misdemeanor and demonstrates incompetency by having an unlicensed salesperson associated with it; broker’s duty to supervise salespersons associated with firm includes assuring that salespersons are properly licensed; broker may not pay any part of a fee for any regulated service except to a duly licensed real estate salesperson regularly associated with the broker or a duly licensed real estate broker; a broker or salesperson who has received money to which he is not entitled may be required to return the commissions; a corporate real estate broker is vicariously liable and bound by the knowledge acquired by and is responsible for the acts committed by its representative brokers; sales associate fined $250.00 and license suspended until such time as refunds his portion of the commission in the amount of $1,700.00; representative brokers each fined $250.00 and corporate broker’s license suspended until such time as refunds broker’s portion of commission in the amount of $3,300.00

597 DOS 00 DOS v. Chintomby - disclosure of agency relationship; unlicensed activity; salesperson failed to provide agency disclosure form; sales agent engaged in regulated real estate transaction at time he was not licensed; oral agency employment created without a defined term is an employment at will terminable on proper notice at any time prior to the completion of the agency purpose; salesperson’s attempt to list property without seller’s knowledge, consent or ratification was invalid initially; salesperson’s termination of association with broker resulted in a termination of the agency relationship between the salesperson and clients of the broker; 19 NYCRR 175.12, which requires a real estate broker to deliver a duplicate original of any document to any executing party where the document has been prepared by or under the supervision of the broker and where the document relates to a regulated real estate transaction in which the broker might participate as a broker, is not applicable to salespersons; salesperson engaged in fraudulent business practice; salesperson’s license revoked

CRC #99-1841 Matter of DOS v. Cuevas, Consent Order - broker employed an unlicensed salesperson in a regulated real estate transaction; $500.00 fine and restitution in the amount of $776.40

CRC #00-0814 Matter of Moore - unlicensed activity; brokers engaged in regulated real estate transactions during a period of time when their respective licenses to do so were suspended; application for renewal of brokers’ licenses denied

634 DOS 01 Matter of DOS v. Charles - failure to pay judgment; settlements; unlicensed activity; failure to pay judgment without a showing that broker is unable to do so is a demonstration of untrustworthiness; broker is guilty of a misdemeanor, RPL §442-c, when broker has an unlicensed salesperson associated with him, her or it (temporary letter of authorization to act as salesperson expired); proper to impose a more stringent penalty than that which was asked for in settlement offer where settlement offer has been refused or its acceptance has not been finalized; $1,000.00 fine and satisfaction of judgment

745 DOS 01 Matter of DOS v. Vasquez - jurisdiction; DOS fails its burden of proof; unlicensed activity; duty to supervise sales associates; DOS retains jurisdiction over salesperson during automatic renewal period after salesperson’s license expired; DOS fails its burden of proof where it provides no evidence regarding one count in the complaint and where the evidence is equivocal and unclear with respect to another count; salesperson engages in unlicensed activity after license expired; broker fails to supervise salesperson where he allows the salesperson to engage in regulated real estate activity without a license; broker is not entitled to a commission for any real estate transaction effectuated by a salesperson who is not properly licensed in association with the broker; broker may be required to return commission as a condition of retention of his license where broker receives money to which he is not entitled; salesperson to be fined $250 if he reapplies for a license; broker fined $500 and license suspended until such time as he refunds $1,000 commission

752 DOS 01 Matter of DOS v. Caldwell - failure to appear at hearing; unlicensed activity; ex parte hearing may proceed upon proof of proper service; salesperson engaged in unlicensed activity after license expired and prior to renewal; unlawful for broker to employ unlicensed salesperson; broker and salesperson fail to accept offer of $200 fine each; broker and salesperson fined $500 each

104 DOS 02 DOS v. Barnett - disclosure of agency relationships; failure to cooperate with DOS investigation; unearned commissions; unlicensed activity; broker failed to provide agency disclosure form to landlord/client and prospective tenant; broker demanded and received a security deposit and a commission contingent upon approval of rental accommodation by HUD and commingled and converted said sums when approval was not obtained; broker makes false statements during DOS investigations; broker engaged in a regulated real estate transaction under an unlicensed name; broker failed to comply with negotiated settlement terms to refund $2,100, pay $500 fine and execute consent order; restitution ordered in the amount of $2,100, $500 fine; brokers license suspended until proof of compliance

445 DOS 02 Matter of Schuler – deposits; disclosure of agency relationships; proper business practices; unlicensed activity; salesperson engaged in licensed activity while not under the supervision of an employing broker; salesperson failed to follow the instruction of his employing broker to file change of association forms with DOS that broker provided to salesman; failure to pay judgment without showing that salesperson is unable to do so; failure to deposit rent deposit in escrow when salesperson is acting without the supervision of an employing broker; failure to provide agency disclosure form; application for renewal of salespersons license denied

452 DOS 02 DOS v. Kim – unlicensed activity; restitution; engagement in regulated real estate activities while unlicensed; demanding compensation from a principal for real estate work while unlicensed; bringing and maintaining a legal action for commissions while unlicensed; ordered to refund $3,015.00 and pay $1,000.00 fine

314 DOS 03 DOS v. TBS Realty Corp. – deposits; unlicensed activity; broker fails to deposit trust funds into an escrow account and commingled client’s funds with funds of the real estate broker; broker permitted two persons not licensed under or associated with the broker to perform regulated, real estate activity on behalf of the broker; broker fined $3,000

771 DOS 03 DOS v. Camino - disclosure of agency relationships; unearned commissions; unlicensed activity; vicarious liability; broker violates RPL § 442-c by having unlicensed CEO of corporate broker show and negotiate the rental of real property; failure to provide agency disclosure form; failure to return unearned commission due to the unlicensed activity of corporate officer; corporate broker responsible for the acts committed by its representative broker and its unlicensed chief executive officer; $2,000.00 fine and refund of unearned commission in the amount of $1,000.00

534 DOS 04 DOS v. Hanna - unlicensed activity; sanctions; salesperson conducted licensed activity under unlicensed corporation; salesperson rejected DOS’s offer to solve the matter by payment of a fine of $750.00; salesperson fined $1,000.00

696 DOS 04 DOS v. Polanco - DOS fails its burden of proof; unlicensed activity; failure to appear at hearing; exparte hearing may proceed upon proof of proper service; DOS fails to prove that broker paid a fee for licensed activity to an unlicensed person where DOS merely produced two checks made payable to a licensed broker with notation of name of unlicensed person; DOS fails to prove that broker acted as a representative broker of a corporate broker without being so licensed where broker was merely listed as an officer of the corporation and did no more than write checks on the corporate account; broker operated an unlicensed corporate real estate brokerage business without obtaining a license in the corporate broker’s name; $500.00 fine

716 DOS 04 DOS v. Prince - bad check; unlicensed activity; broker engaged in licensed activity under assumed unlicensed names; DOS fails to prove that broker failed to present agency disclosure forms and failed to provide services contracted for; broker issued numerous bad checks, both in licensed and unlicensed activities; broker engaged in the unauthorized practice of law by using a lease which was not jointly approved by the local bar association and local association of Realtors nor has an attorney’s approval clause; lease contained an attorney’s consultation clause in favor of tenant only; broker failed to cooperate with DOS investigation where he falsely advised DOS investigator that complaint had been withdrawn; charge that broker failed to pay outstanding judgments dismissed where broker lacks means to satisfy judgments; DOS failed to prove that broker failed to pay another real estate broker its share of cooperating commission where broker has the right to dispute amounts due and owing; ALJ considers fact that in 2000 broker pleaded nolo contendere to charges of mishandling rents and security deposits and agreed to pay a $15,000 fine; broker’s license revoked

811 DOS 04 DOS v. Owners’s Club Realty, Corp. - DOS fails its burden of proof; disclosure of agency relationships; unlicensed activity; DOS failed to prove that unlicensed person represented brokerage firm; DOS failed to prove that broker failed to provide agency disclosure form to consumer where form was presented and consumer refused to sign; DOS failed to prove that signature on agency disclosure form was a forgery; DOS failed to prove broker improperly recommended to buyer the employ of a certain attorney; DOS failed to prove brokerage agreement was unlawful without consideration, vague and indefinite and not in the best interest of the seller; brokerage agreement between buyer, seller and broker for the sale of seller’s property to a specified buyer is not a listing agreement within meaning of 19 NYCRR 175.24 and therefore it is not applicable; complaint dismissed

906 DOS 04 DOS v. Andrews - disclosure of agency relationships; duty to supervise sales associates; unearned commission; unlicensed activity; DOS fails its burden of proof; DOS fails to establish that two salespersons acted as salespersons on behalf of broker prior to being so licensed; DOS fails to prove that salespersons demanded an unearned commission where salespersons had an honest and good faith belief that they were entitled to a commission as a result of discussing the purchase of a home on several locations with the buyer and after having been asked by the seller to assist her in selling the house to the buyer; salesperson failed to provide agency disclosure in two rental transactions; charges relating to unlicensed activity and demanding an unearned commission are dismissed; two salespersons and two representative brokers are fined $500.00 each for failure to provide agency disclosure

1022 DOS 04 Matter of Keitzer - proof of qualifying experience; unlicensed activity; after salesperson terminated his association with his broker, salesperson took a listing, attended a closing and received a commission in his name for real estate services; salesperson acted as real estate broker without being licensed as such and demanded and received compensation from a person other than a licensed real estate broker with whom salesperson was associated; salesperson failed to prove requisite trustworthiness required to renew license; license renewal denied

482 DOS 05 Matter of Carro-Caputo - unlicensed activity; proof of qualifying experience; DOS proposes to deny renewal application for broker’s license due to alleged unlicensed brokerage activities; broker timely made application to renew license and enrolled in required continuing education classes at NYU and relied on NYU to notify DOS of course completion, as was its practice; NYU failed to submit certification of completion to DOS; upon next renewal, DOS returned application requiring broker to retake qualifying examination, which broker did and passed; where timely and sufficient application for renewal has been made, license does not expire until the application has been finally determined by the agency; broker’s belief that she was properly licensed after taking all the required actions precludes a finding of untrustworthiness; application for broker20s license granted

515 DOS 05 DOS v. Duroseau - failure to appear at hearing; fraudulent business practices; deposits; commissions; unlicensed activity; disclosure of agency relationships; jurisdiction; DOS retains jurisdiction where alleged unlawful acts occurred during licensure and where after license expired licensee was eligible to automatically renew his license; salesperson engaged in fraudulent business practices by failing to refund deposit monies to a principal, illegally retaining deposit funds, retaining an illegal commission, failing to provide agency disclosure form to principal and by acting as an unlicensed real estate broker; DOS fails to prove non-cooperation with investigation where salesperson submitted two written responses to DOS’s requests; salesperson ordered to refund $2,300.00 plus interest, any future application for licensure will not be considered until refund made

583 DOS 05 DOS v. Scalise - attorneys; disclosure of agency relationships; unlicensed activity; broker-attorney failed to provide agency disclosure form; issues raised by the proof but not charged by the state include acting as an attorney and as a real estate broker in the same regulated real estate transaction and in the same legal document, not making clear as to what party the real estate broker is acting, acting as a real estate broker without informing the seller, demanding an unearned commission, and using legal process to collect an unearned commission; the tribunal is precluded from deciding issues not charged by DOS; broker fined $1,000.00

588 DOS 05 DOS v. Aharonov - disclosure of agency relationships; unlicensed activity; DOS fails its burden of proof; salesperson obtains two listings for residential premises at the time salesperson was not licensed; as salesperson was unlicensed, DOS fails to prove that salesperson failed to comply with RPL § 443 for failing to provide agency disclosure notice; salesperson’s license revoked

702 DOS 05 DOS v. Shaffer - unlicensed activity; salesperson represented himself as licensed and associated with broker, showed real property for sale and had purchaser execute an offer after his license as a real estate salesperson had expired nearly two months earlier and prior to its renewal over ten months later; salesperson’s license revoked.

711 DOS 05 DOS v. All Island Estates Corp. - availing of license; duty to supervise sales associates; fraudulent practice; unlicensed activity; motion to dismiss at conclusion of DOS case; post hearing submissions; DOS charges corporate broker and representative brokers with unlicensed activity, availing of broker’s license to salesperson, employing and authorizing unlicensed persons to engage in regulated real estate activities and failing to properly supervise associated salespersons; broker’s motion to dismiss the proceeding on the close of complainant’s case for failure to prove the essential allegations of the complaint is dismissed and hearing continues; DOS fails to prove by substantial evidence the allegations made in the complaint; complaint dismissed.

719 DOS 05 DOS v. Choi - forgery; fraudulent practices; unlicensed activity; salesperson forged buyer’s name on two binders and repeatedly lied about the forgeries to DOS’s investigator; salesperson appeared at closing and asked the seller’s attorney to issue her a check for her share of the listing broker’s commission directly from the seller’s proceeds; salesperson acted and held herself out a real estate salesperson after her license had expired and prior to it’s renewal; salesperson engaged in fraudulent practices; salesperson’s license revoked.

764 DOS 05 DOS v. Lalla – disclosure of agency relationships; bad checks; deposits; forgery; unlicensed activity; salesperson offered for sale property which was not listed with her, failed to provide agency disclosure forms, breached her fiduciary duties to her client by having buyer issue deposit checks to an entity controlled by her sons and not to the owner, failed to provide buyers with a copy of the purchase contract, issued refund checks drawn on accounts with insufficient funds, engaged in a fraudulent practice by telling co-workers she would give them money to cover a check she issued to replace a deposit and then failed to do so, conducted a transaction without the knowledge of a supervising broker, failed to refund purchaser’s deposit money in a cancelled transaction, issued a deposit check on an account with insufficient funds, held herself out and acted as a real estate salesperson when not licensed to do so, failed to cooperate with DOS’s investigation by failing to meet or provide requested documents, and engaged in a fraudulent practice by submitting a renewal application containing the forged signature of her sponsoring broker; salesperson’s license revoked and directed to refund $15,000.00 deposit.

961 DOS 06 DOS v. Catarine- prior misconduct violation of consent order; failure to make restitution; practice of real estate brokerage while unlicensed; revocation

991 DOS 06 Matter of Levine – fraudulent practice, no business sign, unlicensed trade name, no place of business (RPL 441-a[3]), failure to cooperate, $3,000 fine

1008 DOS 06 Matter of Gold Star Homes – failure to provide agency disclosure, net listing, duty to supervise, allow unlicensed activity, unauthorized alteration of documents, refusal to release client from improper listing, failure to cooperate with DOS, egregious violation, revocation

1021 DOS 06 matter of Godard – fraudulent practices, altered check, unlicensed corporation, restitution, 6-month suspension

1 DOS 07 Matter of Ali – appraiser allowing appraiser assistant to affix signature to report which he did not review, settlement offers declined, no fine authorized, 3-month suspension

591 DOS 07 Matter of Noonan- salesperson application for broker license denied; false and fraudulent documentation, forgery of essential signature; involvement in unlicensed brokerage business while unlicensed; failure to prove sufficient creditable experience; failure to cooperate

664 DOS 07 Matter of Jenkins- unlicensed brokerage activity; negotiation of rental and collection of rent; wrongful retention of unearned funds; failure to cooperate; referred to Attorney General for prosecution (RPL 441-e[2])

1517 DOS 07 Matter of Bizzari- Broker; fraud and breach of fiduciary duty re deposit; bad check; commingling (19 NYCRR §175.1) unauthorized demand for 50% down payment; fraud and misrepresentation as registered HUD agent; false statement that purchase would be owner-occupied; failure to disclose broker ownership interest in listed property (19 NYCRR 175.6); failure to deliver duplicate original (19 NYCRR 175.12); agency disclosure notice (RPL § 443[3][b]); use of unlicensed name (RPL § 440-a; 441 [1][a]); incompetency; revocation

1919 DOS 07 Matter of Rite Buy Homes- salesperson holds himself out as broker; failure to supply copies; failure to make disclosures; improper ownership of voting stock; 175.4, 175.7, 175.22; other salesperson avails license; revocation and prohibition on reapplication unless refund unearned commission of $11,056 plus interest; one year suspension of salesperson who availed license

1955 DOS 07 Matter of Hannays- broker applicant; improper rental practices (security deposit, escrow account, commission); unlicensed name; dishonesty; fraud and misrepresentation with intent to injure; commingling funds; escrow account violation 19 NYCRR 195.1; credible respondent testimony re: lack of good faith by complainant; unlicensed brokerage activity; must refund $1,600 deposit and pay fine of $1,000 before consideration of application for brokerage license

1956 DOS 07 Matter of Martinez- broker and attorney; supervision due to escrow violation; unlicensed practice of real estate brokerage; availing notary public commission; unearned commissions; revocation

2237 DOS 07 Matter of Blanchard- broker; improper commission agreement with provided for payment without commission being conditioned upon landlord granting legal possession of leased property; unlicensed activity; incompetency for engaging in management business without license for that entity; unlawful retention of commission by unlicensed entity; failure to cooperate; refusal of opportunity to settle; six month suspension and future suspension until proof of restitution of commission paid to unlicensed entity

2283 DOS 07 Matter of Gill- broker; unlicensed activity; failure to supervise; failure to refund deposit; failure to notify of change of association; salesperson failure to cooperate; fine of $1,000; broker fine of $300.

2266 DOS 07 Matter of Mitchell- broker; unlicensed name; failure to notify of termination of association of salesperson RPL 442-b; §175.7 duty to make clear for whom acting and not receive compensation for more than one party without knowledge and consent of all parties; failure to cooperate; $3,000 fine and payment of judgment of $3,308.75 to salesperson for owed commissions

2250 DOS 07 Matter of Taylor- salesperson; unlicensed activity under unlicensed name other than broker with who associated; improper collection of compensation from other broker; unlicensed apartment information vendor-listing room for rent; salesperson license revoked

2248 DOS 07 Matter of Barbuto- salesperson; unlicensed activity before license not renewed; $500 fine

248 DOS 08 Matter of Grimaldi – broker; availing license to unlicensed person; renewal denied

456 DOS 08 Matter of Slayton – broker; unlicensed activity before renewal; unearned commission; $2,000 fine and release of commission claim

473 DOS 08 Matter of DiCapua – appraiser assistant; continuing education; wrongful license for substantial period of time; revocation

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

23 DOS 09 Matter of Haskin – salesperson; unlicensed activity; reprimand and refund commission paid during period of unlicensed activity

88 DOS 09 Matter of Mekawy – salesperson; unlicensed name; agency disclosure; $500 fine

106 DOS 09 Matter of Pan – salesperson; operating without proper affiliation; cease and desist; $500 fine

237 DOS 09 Matter of Cheung – salesperson; unlicensed activity; direct receipt of deposits; revocation; restitution if reapply

256 DOS 09 Matter of Levin – broker; cease and desist; isolated incident; duty to supervise; dismissal of charge of unlicensed name due to DOS failure to respond and efforts to process change of name

359 DOS 09 Matter of Iglicki – broker; unlicensed activity; creation of false documentation; egregious violations; revocation

583 DOS 09 Matter of Hillaire – failure to maintain escrow account; failure to provide agency disclosure; using unlicensed name; failure to cooperate with DOS; $1,000 fine and refund $480 plus interest

640 DOS 09 Matter of Landetta – breach of fiduciary duties; unearned commission; failure to provide agency disclosure; unlicensed activity; failure to maintain escrow account; failure to cooperate with DOS; escrow account charge dismissed; $3,000 fine and refund of $300 plus interest

661 DOS 09 Matter of Demmo – unlicensed activity; commission from other than broker; failure to cooperate with DOS; $2,000 fine

747 DOS 09 Matter of Simme – unlicensed activity; failure to renew; 14 transactions; $3,000 fine and refund to one seller $16,200 plus interest (less the full restitution of all commissions when unlicensed and less than $1,000 fine per transaction)

960 DOS 09 Matter of Moore – salesperson; unlicensed activity without knowledge of broker; agency disclosure; unearned commission; failure to satisfy judgment; revocation; no relicensure unless pay $530 judgment with interest

1212 DOS 09 Matter of Escue – salesperson; CE; wrongfully licensed for substantial period of time; revocation

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Third quarter Legal Lines now available

The third quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers what a broker's agent actually is, the legal issues related to social media use, conditional approval for financing is not a mortgage commitment and more. Learn more

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