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E. DISCIPLINARY PROCEEDINGS

Matter of Janes v. DOS (167 A.D.2d 960) affirmance of finding of failure to disclose dual agency. Reversal of finding of improperly inserting commission clauses in sales contracts, for failure to give notice of charge (citingMatter of Trivelas v. Patersen, 91 A.D.2d 1000, 1001).

2. Matter of Zelik v. DOS (168 A.D.2d 215) affirmance of finding of failure to disclose mortgage broker commission and switch in lending institution.

3. Matter of Short Term Housing v. DOS (176 A.D.2d 619) rental of apartment at a rate in excess of 10% statutory limit in Emergency Tenant Protection Regulations. Firm's retention of proceeds after knowledge of misconduct warrants suspension until commission is returned.

4. Matter of Roberts Real Estate v. DOS (80 N.Y.2d 116, October 20, 1992, modifying 171 A.D.2d 217) RPL 442-c prevents suspension or revocation of corporate broker's license unless the corporation's officers, directors or representative brokers have "actual knowledge" of the violation.

5. Matter of Whitbread Nolan v. Shaffer (183 A.D.2d 610) revocation is annulled - due process, lack of notice as to alleged bad checks, prejudice presumed even where matter litigated at hearing.

6. Matter of Donati v. Shaffer (187 A.D.2d 426) charge of violation RPL §440-a (unlicensed activity) annulled and matter remitted for imposition of new penalty on other charges; charge of failure to disclose and violation of 19 175.4 (licensee's interest in property) supported by substantial evidence; DOS erred in ordering divestment of entire commission; rather than only the portion received by the respondent; DOS exceeded authority in requiring the payment of interest upon commission which respondent was to repay.

7. Ely-Cruickshank Co. v. Bank of Montreal (81 N.Y.2d 399) commission claim barred by statute of limitations; seller secretly negotiated sale prior to termination of listing agreement. Even assuming seller breached implied covenant of good faith, the six year statute has elapsed.

8. Matter of Kavan v. Shaffer (199 A.D.2d 1089) salesperson violates RPL§442-a and 175.21, by receiving commissions directly from clients; assignment of claim for commission is prohibited, as the parties are not licensed brokers.

9. Matter of Huber v. Shaffer (160 Misc. 2d 923) charge of failure to post real estate broker sign on outside of building dismissed against attorney/broker; requirement for attorney licensed as broker to comply distinguished (Canelli v. Department of State, 16 A.D.2d 352), and exemption of RPL §442-f applied; DOS does not challenge petitioner's honesty or competence.

10. Matter of Donati v. Shaffer (83 N.Y.2d 828) DOS has authority to order payment of interest on restitution; disciplinary determination does not shock the judicial conscience.

11. Matter of Fogel v. DOS (209 A.D.2d 615) - Article 78, denial of salespersons license renewal and application for broker's license affirmed; prior conduct; prior convictions for sexual misconduct demonstrates untrustworthiness; untrustworthy act does not have to relate to real estate transaction; Secretary of State has wide discretion in determining untrustworthiness.


12. Matter of Cornell Assoc. Realty v. Shaffer (210 A.D.2d 537); motion for leave to appeal denied (85 N.Y.2d 1021) - vicarious liability; personal liability; due process; broker must have actual knowledge of misconduct to be liable for employees misconduct; broker not personally liable for deposit where retained by seller; due process met where complaint describes substance of acts complained of.

13. Matter of Loffredo v. Treadwell (235 A.D.2d 541) - determination of Secretary of State which revoked real estate broker’s licenses of two petitioners and suspended license of third petitioner confirmed; RPL §441-c(1) empowers Secretary of State to revoke or suspend license of broker or salesman for untrustworthiness or incompetency; DOS determination that brokers demonstrated untrustworthiness and incompetence by inducing potential sellers to sign commission agreements by misleading or threatening them with unmeritorious lawsuits is supported by substantial evidencepenalty was not so disproportionate to the offense as to be shocking to one’s sense of fairness.

14. Matter of Maneri v. New York State Department of State (240 A.D.2d 748) - DOS’ determination to revoke broker’s license and notary commission is confirmed; DOS’ finding that licensee was untrustworthy as a result of participation in a scheme in which several properties were sold without the owner’s knowledge or consent and having engaged in misconduct by notarizing deeds without the signatories appearing before him were supported by substantial evidence; DOS may revoke or suspend the license of a broker or salesman upon a determination that the licensee is guilty of fraud or fraudulent practices; revocation was proper notwithstanding licensee’s receipt of a certificate of relief from civil disabilities.

15. Matter of Plantone v. State of New York Department of State (251 A.D.2d 1049) - DOS’s revocation of salesperson’s license upheld; certificate of relief from disabilities after licensee was convicted upon plea of guilty of attempted arson in the third degree and conspiracy in the fourth degree does not preclude DOS from exercising its discretion to revoke license; granting a certificate of relief from disabilities precludes automatic revocation, but not revocation upon DOS’s determination that licensee is untrustworthy; DOS’s decision is not arbitrary and capricious and the penalty imposed (license revocation with the right to reapply after one year) not shocking to one’s sense of fairness.

16. Wang v. Daniels (305 A.D.2d 186) – determination of the Secretary of State suspending broker’s license for untrustworthy conduct until such time as she stops operating as an unlicensed apartment information vendor unanimously confirmed; Secretary of State’s determination is supported by substantial evidence that broker’s internet business offered apartment listings and related information for a fee and without a license in violation of RPL §446-b, and that although the Department of State repeatedly warned broker over a period of years to obtain a license, she refused to do so based on her own interpretation that the licensing requirement does not apply to apartment information vendors who utilize the internet; although such defiance has no direct relationship on the broker’s real estate license, no basis exists for disturbing the Secretary of State’s finding that such defiance demonstrates an untrustworthiness within the meaning of RPL §441-c(1)

17. Hornick v. Hecht Group Corp.(4 Misc. 3d 143 A) - small claims court’s dismissal of actions against broker affirmed where the evidence fairly supports a finding that the broker satisfactorily performed its contractual obligations and had no part in any fraud or misrepresentation in obtaining plaintiff’s agreement to lease the apartment; claims that broker engaged in dishonest or misleading advertising or demonstrated untrustworthiness or incompetency in violation of RPL§ 441(c) are matters solely within in the jurisdiction of the Secretary of State

18. Atanas v. Long Island Board of Realtors, Inc. (22 A.D.3d 574) – determination of Supreme Court in CPLR Article 78 proceeding to review a determination of the Board of Directors Review Panel of the Long Island Board of Realtors, Inc. affirming a decision of the Ethics Hearing Panel which, after a hearing, determined that the petitioners violated Article 15 of the Code of Ethics of the National Association of Realtors and imposed disciplinary sanctions, including a fine, confirmed; substantial evidence was adduced at the hearing to support the determination that petitioners violated Article 15 of the Code of Ethics of the National Association of Realtors by recklessly making false or misleading statements about their competitors.

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