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13. Disclosure of Witnesses and Documentary Evidence

SAPA §401(4) written demand for witnesses and documentary evidence

10 DOS 92 Matter of DOS v. Donato - DOS is required only to disclose the evidence and witnesses it intends to produce at the hearing

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

288 DOS 96 Bresler v. DOS - applicant for licensure must prove by substantial evidence that she meets the statutory prerequisite of equivalent experience; DLS may require documentary evidence to avoid fraudulent claims; mere conclusory statements by applicant are insufficient; broker’s license application denial confirmed

24 DOS 97 Matter of Wandoloski - license renewal; felony plea; disclosure of witnesses and documentary evidence; plea of guilty to Federal felony with no equivalent New York crime fails to provide jurisdiction to deny application solely because of conviction; applicant has not been convicted within meaning of RPL §440-a where he has pled guilty to a crime but has not yet been sentenced; where proper, unchallenged demand is made for discovery is not complied with, the hearing tribunal may, and often should, refuse to allow into evidence documents which have not been produced

1019 DOS 08 Matter of Casanova – broker; failure to provide RPL 443 agency disclosure (pleadings conformed to the proof); selling broker not responsible for providing copy of listing agreement 175.7; dismissal of charge of receipt of commission in excess of agreed commission under claim of oral modification; dismissal of charge of improper commission from unlicensed party RPL 441; unlicensed salesperson; forfeiture of commission; suspension; fine of $500; broker 4-month suspension and refund of $6,420 with interest

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The third quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers what a broker's agent actually is, the legal issues related to social media use, conditional approval for financing is not a mortgage commitment and more. Learn more

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