13. Individual Licensee Acting in Association with Corporate Licensee

75 DOS 93 Matter of Oberg - individually licensed broker can work in association with corporate licensee in own licensed name, but not under the corporate licensee's name or supervision. DOS fails its burden of proof

77 DOS 93 Matter of Bleir - individually licensed broker acting under name and aegis of corporate licensee must have associate broker licensee; failure of proof as to one licensee

88 DOS 93 Matter of Cappucilli - broker who fails to deliver commission to assignee guilty of conversion; failure to satisfy judgment without proof of inability to do so constitutes untrustworthiness; salesperson can't be corporate officer; engaging in business under corporate name while only licensed individually constitutes incompetency; satisfaction of judgment ordered as condition to re-licensure

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

101 DOS 93 Matter of Dioniso - individually licensed broker fails to obtain associate broker's license when acting under the name of the corporation; dismissal of one charge due to insufficient evidence; document admitted for a limited purpose cannot be used for additional purposes to show a failure to deliver a disclosure document

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

103 DOS 93 Matter of Cipriani Lewis - individually licensed broker fails to obtain associate broker's license when acting under the name of the corporation; must get relicensed as associate broker, can't merely file salesperson's change of association form; pleadings amended to conform to the proof; reprimand

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

113 DOS 93 Matter of DOS v. Ebanks - return receipt adequate proof of notice of hearing both as originally scheduled and as adjourned; sponsoring broker's affidavit reveals he allowed an unlicensed individual to engage in activities requiring a license

135 DOS 93 Matter of Graham - (related case settled - CRC #276 [Knobel]) payment of commission to salesperson not associated with broker violates RPL §§442 and 442-c and 19 NYCRR §175.13; sales associate arranges payment via another broker due to fear that former broker would not pay her; absence of harm to public; salesperson cannot be officer of licensee corporation; DOS failure to prove that sales associate of one firm, who was corporate officer of another firm, was also licensed as a sales associate of that firm

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

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

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 control the disclosures required of licensees; subsequently licensed corporation not vicariously liable; failure to provide copy of agreement 175.12; inadvertence considered in determining penalty

57 DOS 94 Matter of DOS v. Sbarra - DOS jurisdiction continues during two-year renewal period after license expiration; individually licensed broker who worked under the name and as representative of a firm acted as unlicensed associate broker (RPL §440-a); broker must be licensed in the capacity in which he conducts business

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

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