10. Consolidation of hearings

8 DOS 91 Matter of DOS v. Grovine Mattone - standards of consolidation of charges

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

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

95 DOS 95 Matter of DOS v. I. M. Sharp, Inc., et al. - qualifying experience; consolidation of actions; material misstatement in application; retention of salesperson's listings, Reg. 175.14; license granted

73 DOS 95 Matter of DOS v. Marotta - consolidation of actions; dual agency; disgorgement of broker commission; broker may act concurrently in a single transaction as an agent and a principal with informed consent of and full disclosure to principal; broker's agreement breached by broker where broker obtained property incompatible with client's stated needs; no broker's fee earned where brokerage agreement breached by broker; broker engaging in business under trade name acts as individual; agency created between broker and buyer by conduct of parties; dual agency allowed upon full disclosure and informed consent of both buyer and seller; no commission earned by broker where breach of fiduciary duty; refund unearned commissions

720 DOS 05 Matter of Conley - proof of qualifying experience; amendment of complaint; hearsay; supplemental complaint; consolidation of hearings; DOS proposes to deny salesperson’s application for a brokers license based upon lack of proof of qualifying experience; hearing continued to allow applicant to file additional information with DOS; DOS thereafter moves to file an amended complaint alleging fraudulent documentation submitted in support of license application; tribunal deems State’s amended complaint as a supplemental complaint because it brings to the notice of both the tribunal and the applicant events alleged to have occurred since the pleading sought to be supplemented and the complaint both alleges an allegation and seeks a relief not alleged or sought in the original pleading; motion for leave to supplement the pleadings is granted; examination of 72 documents during hearing out of 1,848 documents submitted by applicant establishes that applicant’s testimony concerning the documents is willfully false on the material issue of experience and the tribunal finds testimony not credible and considers all documents submitted to be false; applicant failed to prove he possessed the experiential prerequisite for a license as real estate broker; applicant submitted documents containing false information and false statements concerning the material issue of experience in support of his application; application for a license as a real estate broker denied and real estate salesperson’s license revoked.

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Fourth quarter Legal Lines now available

The fourth quarter 2019 edition of NYSAR’s Legal Lines is now available online at This edition covers new DOS proposed regulations, emotional support animals in housing, Landlord discrimination and more. Learn more