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6. Availing of License

49 DOS 91 Matter of Kavan - illegal for broker to avail license to sales associate; single assignment of entire commission o.k.; blanket assignment of all commissions unlawful

9 DOS 91 Matter of Oronzio - "fronting" improper; sales associate does not acquire qualifying experience due to lack of supervision

96 DOS 91 Matter of DOS v. Tripoli - improper for salesperson to operate as broker and pay all expenses

Declaratory Ruling 91-35 Matter of Realty Executives Modern Times Realty, Inc. - permissible for salesperson to receive 100% of commissions if work under broker supervision

25 DOS 91 Matter of Williams - permissible for sales associate to have administrative responsibilities so long as supervised; experience under supervision qualifies for broker licensure

5 DOS 93 Matter of Mansher & Gold East Realty - salesperson trainee improperly allowed to act as salesperson

8 DOS 93 Matter of Cruz - broker who worked in association with an unlicensed firm did not violate RPL §442-c, which applies to a broker who has an unlicensed salesperson affiliated with his (the broker's) firm

CRC #253 (286, 273) Matter of DOS v. Gena DiDonato, Consent Order - availed license to unlicensed person

CRC #287 Matter of DOS v. Lowe, Consent Order - availed license to unlicensed person, 2 x $5,000 fine, sales associate licensed, but 1 year delay in seeking broker's license

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

CRC #226 Matter of Kane, Consent Order - commission received as result of activities of unlicensed salesperson; failure to promptly file change of association application; fine $2,500

CRC #301 Matter of Ilie, Consent Order - failure to supervise sales associate and failure to investigate conduct constitute availing of license; $450 fine and testify against sales associate

45 DOS 94 Matter of DOS v. Sturdevant - failure to prove "availing," as a necessary element is lack of supervision; uncharged misconduct (regarding unlicensed name and escrow funds) was not fully litigated and is not grounds for discipline; accordingly, do not reach issue of reliance upon advice of counsel

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

130 DOS 95 Matter of DOS v. Hevey - Availing of broker's license; supervision of salesperson; unlicensed activities; commission rate; assignment of cause of action for commission; broker avails broker's license to salesperson where the office in which the salesperson conducted regulated real estate activity was either owned, maintained and operated by salesperson without the direct supervision of the broker or was operated under an arrangement, the purpose, intent or effect of which permitted the salesperson to conduct the business of a real estate broker for the salesperson's own benefit (§175.20); salesperson obtains all clients and real estate business on behalf of broker; salesperson must give honest and accurate representation of agency, status and associate standing in all advertising; commissions are not regulated by statute nor fixed by custom and usage, are freely negotiable but must be relevant to and represent charges for some legitimate service; broker and salesperson are barred from collecting commission in a transaction in which salesperson acted illegally as broker and broker availed his license; permissible for broker to assign rights to salesperson for purposes of bringing an action to recover a commission; broker and salesperson each fined $1,000.00

121 DOS 99 Matter of DOS v. Swaap - failure to appear at hearing; prior misconduct; material misstatement on application; availing of license; apartment information vendor; licensee’s conviction of a felony (grand larceny in the second degree) is a bar to licensure in the absence of a executive pardon, certificate of relief from disabilities or a certificate of good conduct; licensee fails to establish requisite pardon or certificate of relief from disabilities or good conduct; unlicensed operation of Internet business offering to supply listings of apartments available for rent for a fee constitutes unauthorized apartment information vending; broker avails license to salesperson by leaving salesperson in charge of brokerage business with authority to sign bank account while broker is in prison; broker’s license revoked


7 DOS 00 DOS v. Flagship Marketing Group - availing of license; failure to cooperate with DOS investigation; jurisdiction; proper business practices; ex parte hearing may proceed upon proof of proper service; DOS retains jurisdiction over party not licensed at the time of the hearing where, at that time the complaint was served, the party was (i) licensed, (ii) an applicant for a license or renewal, or (iii) was eligible to automatically renew; salesperson is prohibited both from owning, directly or indirectly, singly or jointly, any shares of voting stock in and from being an officer of any licensed real estate brokerage corporation with which the salesperson is associated; representative real estate broker availed the corporate broker license to an associated salesperson where the office was operated by the salesperson without the direct supervision of the representative broker and the salesperson conducted business as a broker for his own benefit; representative real estate broker engaged in fraud by availing the corporate real estate broker license to a salesperson; representative broker’s availing of corporate broker’s license for which the corporate broker is vicariously liable; failure to provide business records constitutes failure to cooperate with DOS investigation; DOS fails to establish fraud, ignorance or negligence is not sufficient to prove mistake; pressure, regardless of how severe, is not undue influence; restitution denied where funds sought were received by an entity not named or charged in the complaint; corporate broker fined $3,000.00, representative broker’s license revoked and fined $3,000.00 and salesperson fined $5,000.00

CRC #00-0795 Matter of DOS v. Levy, Consent Order - broker unlawfully avails his real estate license to salesperson and fails to adequately supervise salesperson, $1,000 fine; salesperson demands and retains unearned commission and unlawfully owns all voting shares of stock in corporate broker; salesperson to pay $1,000 fine, broker and salesperson to pay restitution in the amount of $1,234.69 and salesperson to divest himself of ownership and corporate offices of corporate broker or terminate his salesperson association with corporate broker

53 DOS 03 DOS v. Clark – availing of license; disclosure of agency relationships; unearned commission; broker avails his license to salesperson where broker did not maintain, operate or supervise the operations of the office and did not supervise salespersons’ performance of regulated real estate brokerage activities; salesperson violates RPL §443 by failing to provide agency disclosure prior to entering into a listing agreement; broker violates 19 NYCRR §175.24(b) by failing to include explanation of the difference between an exclusive right to sell contract and that of an exclusive agency in the broker’s employment agreement; salespersons breached fiduciary duties of full and fair disclosure and of good faith and undivided loyalty when they intentionally withheld information from the principal of the fact that the potential purchaser was their daughter and when they gave the principal false information about the relationship between the salespersons and their daughter/buyer; breach of fiduciary duty of disclosure and affirmative misrepresentation of fact constitutes a fraudulent practice; salespersons deliberately and knowingly took unfair advantage of seller’s inferior expertise and lack of knowledge of market customs, bargaining power, and or available contractual options where seller, without question, listed the property for $150,000, sold the property for $133,500, and where 28 days thereafter salespersons’ daughter listed the property for $239,900; broker is not entitled to fee obtained as a result of wrongful conduct; restitution of $8,010 ordered; broker’s and salespersons’ licenses 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.

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

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

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

438 DOS 08 Matter of DeLorenzo – broker; dishonest as attorney; escrow fund violation (no loss of money); unlicensed name; 3-month suspension or until proper name

869 DOS 08 Matter of Pitts – broker; false claim of being member of bar; availing of license; failure of proof re: RPL §443 disclosure form; failure of proof of no escrow account; no jurisdiction over unlicensed individuals; revocation and fine of $5,775 with interest if reapply

742 DOS 09 Matter of Sookram – failure to file termination of association notices; failure to cooperate; revocation and $300 fine for corporate broker

789 DOS 09 Matter of Crego -- §175.13; failure to cooperate; broker failure to file termination of association; broker $2,000; salesperson $250 fine

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