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12. Cooperation with DOS Investigation

5 DOS 93 Matter of Cruz - cooperation with investigation and truthful testimony causes Division of Licensing Services to recommend only reprimand of salesperson trainee. ALJ concurs

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

297 DOS 97 Matter of DOS v. Bzdel - proof of qualifying experience; cooperation with DOS investigation; applicant for license renewal technically violated RPL §442(3)(a) by failing to complete the mandated education requirement prior to licensure renewal; applicant did not make material misstatement on application and cooperated with investigations; technical violation of RPL §442(3)(a) where violation was not intentional and purpose of the law was not circumvented where real estate salesperson did not engage in real estate activities during period of renewal and prior to completion of continuing education requirement; mitigating factors where applicant did not work as a real estate salesperson because of her son’s illness (lead poisoning), her husband was terminated from his job, and applicant’s future employment is uncertain because of recently diagnosed brain tumor; applicant reprimanded

316 DOS 97 Matter of DOS v. Anderson, Consent Order on Appeal - prior default decision revoking salesperson’s license for failure to complete continuing education requirements vacated; consent order substituted for prior decision; timely administrative appeal; failure to complete continuing education and to appear at hearing did not demonstrate untrustworthiness or willful failure to comply; license surrendered until proof of completion of continuing education requirements

319 DOS 97 Matter of Smith - adjournments; due process; failure to appear at hearing; failure to cooperate with DOS investigation; qualifying experience; a request for an adjournment must be received by the hearing tribunal no later than 3 business days prior to the scheduled hearing; an ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to meet mandatory continuing education requirements; DOS fails to establish failure to cooperate with an investigation where licensee fails to attend requested meeting to discuss education requirements where licensee previously informed DOS that he had not completed the requirements; salesperson’s license revoked

324 DOS 97 Matter of DOS v. Posillico - qualifying experience; failure to cooperate with DOS investigation; salesperson’s application for license renewal for a period commencing on June 25, 1995 was prior to effective date (November 1, 1995) of amended RPL §441(3)(a) and therefore there was no continuing education requirement applicable; licensee failed to cooperate with DOS investigation by failing to respond to DOS’ information request letter and failing to contact investigator until day of scheduled conference when it was too late to reschedule; $250 fine

330 DOS 97 Matter of DOS v. Pinnola - due process; DOS fails its burden of proof; cooperation with DOS investigation; proof of qualifying experience; licensee fails to cooperate with DOS investigation where he does not respond to information request letter regarding continuing education requirements; DOS fails its burden of proof to establish licensee failed to meet his continuing education requirements where DOS failed to require proof of such completion be submitted with renewal application, licensee was not present at the hearing and DOS merely relied upon post-license issuance audit; tribunal considers fact that respondent may have been wrongfully licensed for a substantial period of time; salesperson’s license suspended until submits proof of satisfactory completion of continuing education requirement and further suspension for a period equal to the amount of time licensee improperly licensed plus two months

352 DOS 97 Matter of DOS v. Schott - proof of qualifying experience; due process; DOS fails its burden of proof; DOS fails to establish applicant failed to complete the required continuing education courses where DOS did not require proof of such completion be submitted with the license application and where applicant failed to respond to audit or appear at hearing; applicant’s failure to respond to two DOS requests for information constitutes non-cooperation; tribunal considers fact that respondent may have been wrongfully licensed for a substantial period of time; license as a real estate salesperson suspended until such time as applicant submits satisfactory proof of completion of continuing education courses and further suspension for a period equal to amount of time improperly licensed plus 2 months

362 DOS 97 Matter of DOS v. Calle - proof of qualifying experience; due process; failure to cooperate with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee’s failure to respond to education requirement audit letters constitutes failure to cooperate with DOS investigation; DOS fails to prove licensee’s lack of education requirement where licensee fails to answer audit letters and fails to appear at hearing; salesperson’s license is suspended until licensee presents satisfactory proof that he has complied with the continuing education requirements

369 DOS 97 Matter of DOS v. Weimar - proof of qualifying experience; due process; cooperation with DOS investigation; DOS fails its burden of proof; failure to appear at hearing; material misstatement on application; exparte hearing is permissible upon proof of proper notice of hearing; DOS fails to establish licensee failed to cooperate with DOS investigation where licensee responded to audit letter indicating licensee failed to meet the education requirements and licensee thereafter failed to respond or attend meeting requested by DOS to establish of meeting educational requirements (meeting was superfluous and unreasonable as DOS knew from information supplied by licensee that she had not completed the continuing education requirements); salesperson’s license revoked

374 DOS 97 Matter of DOS v. Gonzalez - proof of qualifying experience; due process; failure to appear at hearing; material misstatement on application; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to meet continuing education requirements; issue of non-cooperation with investigation is moot; real estate salesperson’s license is revoked

379 DOS 97 Matter of DOS v. Moretto - due process; failure to appear at hearing; proof of qualifying experience; DOS fails its burden of proof; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where refuses or fails to respond to audit letter; DOS fails its burden of proof to establish non-fulfillment of continuing education requirement where licensee fails to respond to audit letter, fails to attend requested meeting and fails to appear at hearing; salesperson’s license suspended until licensee presents proof of compliance with continuing education requirement

380 DOS 97 Matter of DOS v. Fukutani - due process; failure to appear at hearing; cooperation with DOS investigation; proof of qualifying experience; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation by failing or refusing to respond to audit letter and attend meeting to establish compliance with continuing education requirements; real estate broker’s license suspended until licensee submits proof of compliance with continuing education requirement

385 DOS 97 Matter of DOS v. Moore - due process; failure to appear at hearing; DOS fails its burden of proof; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where licensee fails or refuses to respond to audit letter and to attend meeting to establish continuing education requirements; DOS fails its burden of proof where licensee fails to respond to audit letter, fails to appear at meeting and fails to appear at hearing; real estate salesperson’s license suspended until licensee presents proof of compliance with continuing education requirement

386 DOS 97 Matter of DOS v. Frost - due process; failure to appear at hearing; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where licensee fails or refuses to respond to audit letter and to attend meeting to establish education requirements; DOS fails its burden of proof to establish licensee’s non-fulfillment of continuing education requirements where licensee fails to respond to audit letter, fails to attend meeting and fails to appear at hearing; real estate broker’s license suspended until licensee presents proof she has complied with continuing education requirements

15 DOS 98 Matter of DOS v. Millien - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where fails or refuses to respond to audit letter and letter requesting licensee to appear and provide proof of compliance with continuing education requirements; DOS fails its burden of proof to establish non-fulfillment of continuing education requirements whether licensee fails to respond to audit, fails to appear and provide evidence of fulfillment of continuing education requirement and fails to appear at hearing; real estate salesperson’s license is suspended until licensee presents proof of compliance with continuing education requirements

40 DOS 98 Matter of DOS v. Ferguson - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation where she only partially responds to audit letter and fails to respond to letter requesting appearance to establish continuing education requirements; DOS fails its burden of proof where licensee fails to appear at requested meeting and fails to appear at hearing; license of real estate salesperson suspended until submission of proof of completion of approved continuing education course and further suspension for a period of time equal to amount of time when improperly licensed plus two months

43 DOS 98 Matter of DOS v. Meehan - due process; failure to appear at hearing; proof of qualifying experience; DOS fails its burden of proof; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation when fails or refuses to respond to audit letter and fails or refuses to respond to letter requesting conference to establish continuing education requirements; DOS fails its burden of proof to establish non-compliance with continuing education requirements where licensee fails to respond to audit letter and fails to attend conference to establish continuing education requirements; real estate salesperson’s license is suspended until licensee presents proof of compliance with continuing education requirement

66 DOS 98 Matter of DOS v. England - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee fails to cooperate with DOS investigation by failing or refusing to respond to audit letter and failing or refusing to appear at conference to establish proof of continuing education requirements; DOS fails its burden of proof that licensee failed to meet its continuing education requirements where licensee fails to respond to audit letter and fails to appear at conference; real estate salesperson’s license is suspended pending proof of completion of continuing education requirements and further suspension for a period of time equal to the amount of time when improperly licensed plus two months

67 DOS 98 Matter of DOS v. Palermo - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; licensee’s renewal application indicated she had not met the mandatory continuing education requirements; whether respondent failed to cooperate with DOS investigation is moot where licensee indicated on her application that she had not met the continuing education requirements; salesperson’s license revoked

84 DOS 98 Matter of DOS v. Lowe - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; ex parte hearing is permissible upon proof of proper notice of hearing; licensee failed to cooperate with DOS investigation by failing or refusing to respond to audit letter and request for conference to establish continuing education requirements; DOS fails its burden of proof where licensee fails to respond to audit letter, fails to appear at conference to establish continuing education requirements and fails to appear at hearing; real estate salesperson’s license is suspended until licensee presents proof of compliance with continuing education requirement

108 DOS 98 Matter of DOS v. Nwozuzu - due process; failure to appear at hearing; proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; licensee fails to cooperate with DOS investigation by failing or refusing to respond to audit letter and failing or refusing to attend conference to establish proof of continuing education requirements; DOS fails its burden of proof to establish licensee failed to meet his mandatory continuing education requirement as licensee failed to respond to audit letter, failed to attend conference and failed to appear at hearing; real estate salesperson’s license suspended until licensee establishes completion of continuing education requirement and further suspension for a period equal to amount of time unlawfully licensed plus two months

999 DOS 02 DOS v. Rosplock – proof of qualifying experience; cooperation with DOS investigation; DOS fails its burden of proof; DOS fails to establish by substantial evidence that licensee has not complied with the continuing educational requirements; licensee fails to cooperate with DOS investigation by failing to provide proof of completion of continuing education requirement; salesperson’s license revoked

1023 DOS 06 Matter of Tesoriero – continuing education, failure to cooperate, failure to appear, dismissal without prejudice as notice of hearing sent to inaccurate and incomplete business address and not received by respondent

1918 DOS 07 Matter of Thomas- Salesperson; deposit of commission in own account; failure to cooperate; failure to notify of change of association; $500 fine before any application to renew

2337 DOS 07 Matter of Theluscat- salesperson; disobey subpoena to testify at DOS hearing; six month suspension

2252 DOS 07 Matter of Ligon- broker; prior suspension for failure to pay judgment; additional charge of failure to satisfy judgment dismissed due to continuing suspension regarding prior adjudication; failure to cooperate; additional two month suspension

2266 DOS 07 Matter of Mitchell- broker; unlicensed name; failure to notify of termination of association of salesperson RPL 442-b; §175.7 duty to make clear for whom acting and not receive compensation for more than one party without knowledge and consent of all parties; failure to cooperate; $3,000 fine and payment of judgment of $3,308.75 to salesperson for owed commissions

2283 DOS 07 Matter of Gill- broker; unlicensed activity; failure to supervise; failure to refund deposit; failure to notify of change of association; salesperson failure to cooperate; fine of $1,000; broker fine of $300

316 DOS 08 Matter of Arthur – appraiser; continuing education; failure to notify of change of address; non-cooperation; revocation

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