16. Notary Public

19 DOS 95 Matter of Friedman - certificate of relief from disabilities compared to certificate of good conduct; sufficient attenuation of crime of grand larceny third degree to be licensed as real estate broker where obtained certificate of relief from disabilities; cannot be licensed as notary public without certificate of good conduct

47 DOS 96 Matter of DOS v. Maneri - felony conduct; pleadings amended to conform to proof; notarization; participation in scheme to fraudulently convey real property demonstrates untrustworthiness; it is irrelevant that licensee's actions were not within scope of activities as licensee where such actions clearly indicate licensee cannot deal fairly with the public; renewal of license after DOS learned of licensee misconduct does not collaterally estop DOS action to revoke or suspend license; Correction Law Act 23-A applies only to applications and not actions by DOS to suspend or revoke license; notary public acts unlawfully when he notarizes a document without the purported signatory being present; felony conviction bars commission as notary public in absence of executive pardon or Certificate of Good Conduct; broker's license revoked; notary commission revoked

224 DOS 96, Matter of DOS v. Hahn - Attorney; notary public; due process; administrative hearing may proceed ex parte where there is evidence of proper service of notice of the place, time and purpose of the hearing; State’s evidence which is not impugned, not improbable and not surprising or suspicious is conclusive; applicant’s failure to appear on application for reappointment as a notary public is deemed a withdrawal of the request for a hearing; trustworthiness and competence is presumed for practicing attorney and not required to be proved for licensure; attorney’s disbarment for professional misconduct has an adverse effect on public and rebuts presumption of trustworthiness and competence and may be considered in determining trustworthiness and competence; application for reappointment as notary public denied; broker’s license revoked

14 DOS 97 Matter of Gawel - notary and broker’s license renewals; failure to appear at hearing requested by applicant on denial of renewal of notary application is deemed withdrawal of hearing request - after 35 days decision to deny is final; DOS must provide applicant with final response to request for administrative review of denial of broker’s license renewal to entitle applicant to request a hearing; application for renewal of broker’s license remanded to DOS for final determination on request for administrative review

240 DOS 97 Matter of DOS v. Embser - attorney; notary public; collateral estoppel and res judicata; attorney’s disbarment for breach of fiduciary duties to an estate and multiple violations involving trust funds warrants revocation of real estate broker’s license and notary public commission; evidence tendered to dispute findings of Appellate Division and disbarment is precluded by the principals of collateral estoppel and res judicata; signing checks using power of attorney after the death of the grantor of the power and failure to abide by various legal requirements warrants revocation of notary public commission

81 DOS 98 Matter of DOS v. Sandberg - attorney; notary public; adjournments; attorney/broker’s breach of fiduciary duty to his law partners by failing to account to his law firm for certain legal fees received demonstrates untrustworthiness; conduct not arising out of attorney/broker’s activities as a real estate broker may serve as the basis for revocation of his license by establishing untrustworthiness; acts of misconduct establishing untrustworthiness form basis for revocation of notary public commission; attorney/broker’s license as a real estate broker and commission as notary public were granted by virtue of being an attorney and basis no longer exists where licensee is disbarred; real estate broker’s license and notary public commission revoked

202 DOS 98 Matter of DOS v. Perlman -- stipulation; reopening; DOS and licensee stipulate to suspension of real estate broker’s license and notary commission until such time as final adjudication of disbarment from practice of law for professional misconduct or either party moves to reopen on notice

287 DOS 98 Matter of DOS v. Uqdah Realty & Management Corp. -- deposits; jurisdiction; fraudulent practices; failure to pay judgment; vicarious liability; notary public; disclosure of agency relationship; broker violated 19 NYCRR 175.1 when he deposited escrow funds into his operating account; broker committed conversion when his operating account fell below deposit amount; broker engaged in fraudulent practices when he illegally retained buyer’s trust funds and attempted to qualify prospective buyer for mortgage by falsely stating their employment; broker failed to disclose his agency relationship to his client; failure to pay judgment; corporate real estate broker vicariously liable and charged with actual knowledge of violation of law because of representative broker’s cognizant misconduct as corporate officer; broker is not required to deposit a refundable commission in an escrow account unless contractually demanded; corporate broker and representative broker’s license revoked; restitution of deposit of $12,000 plus interest; notary public commission revoked based on misconduct as a real estate licensee

CRC #98-3022 Matter of DOS v. Tehranchipour, Consent Order - licensee convicted of felony of conspiracy to restrain trade; surrender of real estate license and notary commission

CRC #99-1473 Matter of DOS v. Terwilliger, Consent Order - engaged in practice of notary public while not commissioned as a notary public and holding self out as duly commissioned in application with DOS; reprimand

162 DOS 99 Matter of DOS v. Swaby - unauthorized practice of law; notary public; DOS fails its burden of proof; broker engaged in the unauthorized practice of law by preparing, for a fee, a petition, Non Payment Dwelling, for a landlord; single act of preparation of petition; DOS fails to prove fraud or fraudulent business practice; real estate broker’s license and notary commission suspended for three months

647 DOS 00 Matter of DOS v. Paglia - attorneys; notary public; attorney granted license as a real estate broker and commission as a notary public by virtue of being admitted to the practice of law; subsequent suspension from the practice of law removes qualifying basis for broker’s license and notary commission; aspects of licensee’s conduct which resulted in suspension from the bar (failure to promptly refund unearned legal fees, commingling client funds and engaging in client transactions with a conflict of interest) directly relate to responsibilities as a real estate broker and demonstrate untrustworthiness; real estate broker’s license and notary commission revoke

19 DOS APP 01 (481 DOS 01) Matter of Harris v. DOS - administrative appeal; record supports findings of fact and conclusions of law by Administrative Law Judge that broker engaged in a fraudulent business practice by failing to return a $950.00 deposit and failing to cooperate with DOS investigation; broker converted and commingled funds by failing to place deposit in a special escrow account; imposition of conditional suspension of real estate license and permanent revocation of notary license based upon same finding of facts creates an anomaly; judgment modified to conditionally suspend notary license along with real estate license until such time as $1,000.00 fine paid and deposit returned

481 DOS 01 DOS v. Harris - deposits; failure to appear at hearing; failure to cooperate with DOS investigation; fraudulent business practice; jurisdiction; notary public; unearned commissions; ex parte hearing may proceed against non-appearing respondent upon proof of proper service; in the absence of an agreement to the contrary, rental broker is entitled to compensation only after procuring a rental agreement between tenant and landlord; broker fails to deposit $950.00 lease deposit in special escrow account; broker commingled funds and converted deposit; broker failed to cooperate with DOS investigation by failing to truthfully answer all questions put to him, by providing DOS with misleading statements and by failing to provide requested documents; providing DOS with untrue and misleading statements indicates broker lacks sufficient honesty to be entrusted with duties of a notary public; DOS fails to prove that broker was unauthorized to show apartment; DOS retains jurisdiction after license expires where renewal may be had merely by submitting application and paying applicable fees; the claim of the right to retain and the retention of an unearned commission is a fraudulent business practice; broker receiving money to which he is not entitled may be required to return it; broker fined $1,000.00 and required to refund $950.00 deposit; broker’s commission as a notary public revoked; charges against nonappearing salesperson dismissed for DOS’s failure to provide proof

594 DOS 01 DOS v. Walker - deposits; failure to appear at hearing; failure to pay judgment; failure to cooperate with DOS investigation; notary public; proper business practices; broker commingles funds by placing deposits in operating account; broker allows escrow account to be overdrawn on numerous occasions; broker uses deposit for separate, unrelated business investment; broker fails to pay judgment without presenting an explanation or excuse for failure to pay judgment; broker fails to cooperate with DOS investigation by failing to respond to and comply with letter directing him to appear for a conference and to provide certain documents; broker fails to notify DOS of new address upon closing office; DOS fails to prove that salesperson improperly held herself out to be real estate broker associated with corporate broker, that the broker made misrepresentations to the purchasers regarding payments they were required to make toward the purchase, that some checks were returned for insufficient funds, that the broker failed to make certain required payments, that the broker properly failed to make certain other deposits and that the broker gave a postdated deposit check which could not be cashed due to insufficient funds; representative broker’s and corporate broker’s licenses revoked, return of deposits in the amount of $400.00 and $3,173.83 ordered with interest, civil judgment to be fully satisfied; salesperson fined $1,000.00 and notary commission suspended for four months

589 DOS 02 DOS v. Giorgi – failure to appear at hearing; notary public; ex parte hearing may proceed upon proof of proper service; broker failed to disclose his suspension from the practice of law; suspension from the practice of law resulted from violations of breach of fiduciary duties to clients; DOS fails to introduce notary application into evidence thereby failing to establish a material false statement on notary application; real estate brokers license revoked

744 DOS 02 DOS v. Agard – attorney; notary public; failure to appear at hearing; failure to cooperate with DOS investigation; ex parte hearing may proceed upon proof of proper service; notary public acts unlawfully when he notarizes a document without the purported signatory being present; broker fails to respond to two DOS letter requests to appear for an interview; notary public commission and license as a real estate broker revoked

1017 DOS 02 Matter of Sorrentino – notary public; proof of qualifying experience; failure to appear at hearing; applications for renewal of salesperson’s license and commission as a notary public denied where applicant timely requests a hearing but fails to appear

___ DOS ___ DOS v. Dominquez – interim order suspending license pending completion of hearing; notary public; during proceedings, evidence supporting charges against broker of substantial misconduct was presented; broker failed to execute an agreed upon consent order settling the matter; broker’s license and notary public registration suspended pending the completion of the hearing as there is an unreasonable risk to the welfare of the general public which warrants emergency action.

746 DOS 06 DOS v. Rossi- notary public; failure to appear at hearing; broker previously signed a consent order in which he admitted that he instructed prospective tenants to sign a rental agreement which did not contain apartment or landlord information, agreed to pay restitution in the amount of $1,106.83, and that failure to comply fully and in a timely fashion with any provision of the consent order would constitute a default which would result in an immediate revocation of the broker’s license and notary commission; broker provided complainant with a copy of a teller’s check for the restitution which purportedly had been mailed to an old address; broker was advised of the new address and said on several occasions that he would mail a replacement check but failed to do so; despite being given every chance to comply with the restitution provision of the consent order, broker failed to comply; conduct underlying the admission in the consent order constituting untrustworthiness and incompetency and being the kind of misconduct which reflects negatively on broker’s ability to act properly as a notary public, license as real estate broker and commission as a notary public are revoked

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