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15. DOS Fails its Burden of Proof

9 DOS 92 Matter of Alexander - failure to prove unlicensed activities and conduct of transactions outside scope of salesperson's license (alleged collecting commissions without reporting transactions and commissions to broker)

151 DOS 92 Matter of Target Realty - failure to link advertisement of 3-family house to specific listing; failure to prove lawful occupancy not as advertised or that broker knew advertisement misrepresented lawful occupancy

158 DOS 92 Matter of Kramer & First American Realty Group - sales associate of commercial broker engages in improper activities in residential transaction, in such a way to prevent broker from being aware of his conduct and broker has no reason to believe salesperson is engaging in any sale activity

1 DOS 93 Matter of Harkavi - ALJ rejects claim of inadvertent administrative error and denies cancellation of beauty shop license which DOS claimed subverted prior disciplinary decision

8 DOS 93 Matter of Cruz - broker who worked in association with unlicensed firm did not violate RPL §442-c, which applies to a broker who has an unlicensed salesperson affiliated with his (the broker's) firm

19 DOS 93 DOS v. Senlow - "double agent" converts deposit and fails to disclose relevant information - restitution as prerequisite to re-licensure charges of unauthorized practice of law and retention of unearned commission dismissed

42 DOS 93 Matter of DOS v. Larson - failure to post broker's license, failure to timely file change of association card; use of unlicensed name; refusal to show investigator requested documents; $1,000 fine; dismissal of unlicensed branch office charge (2 offices, DOS failed to show which was main office)

48 DOS 93 Matter of DOS v. Chetiara Realty [Bonar] - pleadings amended to conform to proof; commission will be relevant to and represent charges for some legitimate services; no proof of relationship to tenant or retainage of unearned commission; no proof of failure to disclose (no live testimony of consumer)

49 DOS 93 Matter of DOS v. Scelfo's Laptree Realty - failure of proof of misleading advertising - must show ads improperly characterize properties for which C/O issued and that ad misrepresented number of occupancies allowed by law

52 DOS 93 Matter of DOS v. Century 21 Sunny Gardens - failure of proof of misleading advertising

60 DOS 93 Matter of DOS v. Bon Chateau Realty - no failure to maintain escrow account where client funds on deposit; may maintain un-negotiated check "in escrow" in accordance with agreement of parties; slight variation between licensed name and name utilized in business; company responsible for actions of representative broker

72 DOS 93 Matter of Reiback - charges dismissed regarding (i) failure to file termination notice with respect to inactive salespersons; (ii) permitting unlicensed person to act as salesperson; receptionist can take messages for licensees

75 DOS 93 Matter of Obera - 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

80 DOS 93 Matter of Droz d/b/a Adirondack Real Escapes - extensive delay (6 years after event and 5 years after complaint) coupled with prejudice to licensee (witnesses memories faded) and absence of excuse from DOS result in dismissal of one charge (regarding alleged delay in making deposit of buyer's check); unlawful practice of law in use of form contract without attorney approval clause which is not jointly approved by bar association and Board of Realtors (review by two attorneys is insufficient); failure of proof that broker did not make clear for whom he was acting; permissible for broker to modify his commission agreement and accept second mortgage from buyer at suggestion of seller's attorney

82 DOS 93 Matter of Zulawski - failure of proof that salespersons breached fiduciary duties: (i) assertion that buyer was said to be “pre-approved" for mortgage; (ii) misinformation about buyer's income (salesperson only repeated what she was told); (iii) failure to conduct independent investigation about buyer's income and expenses (no proof of obligation to do so or industry practice to do so)

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

105 DOS 93 Matter of DOS v. Jacob - inadequate "EXPLANATION" violates 175.24(b); insufficient evidence of failure to give list of MLS members 175.24(c)(1); dismissal of charge of false advertising where broker substantially performed obligations and owner did not give reasonable opportunity to cure alleged defaults and suffered no damage; inadequate evidence of failure to supervise (175.21[a]); post-hearing submission not considered as no request for leave was made during the hearing

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

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

152 DOS 93 Matter of DOS v. Baird - individually licensed broker improperly conducts business under unlicensed name; failure to file termination of association card; complaint amended to conform to the proof; failure of proof of dual agency

122 DOS 93 Matter of DOS v. Century 21 All the Best - upholds use of MLS form agreement - form not required to fully describe services or advice regarding agency issues and risk of subagency; broker not required to verify property ownership and can enter into valid agreement with one co-owner (where prior to achievement of agency purpose broker lacks knowledge of joint ownership); failure of proof of fraud, breach of fiduciary duties and illegal retention of deposit or unearned commission

147 DOS 93 Matter of DOS v. Feld - auctions; auctioneer requires real estate license; improper for salesperson to incorporate and act as auctioneer (without a broker's license) and thereby receive commission splits; unintentional violation based upon faulty advice, therefor $500 fine, rather than revocation; lack of proof of failure to supervise

1 DOS 94 Matter of ERA Faza Realty - DOS is not divested of jurisdiction by voluntary surrender of license or expiration of license if action occurred while licensed, while an applicant for a license, or while eligible to automatically renew per RPL §441(2); requirement of informed consent to dual agency; concealment, misrepresentation and failure in seeking to purchase for own account (2 transactions arranged - sale to licensee and resale at profit to customer, who was qualified for mortgage, but who seller was told had failed to qualify); disgorge profit and commission; fee not related to performance of legitimate service; representative broker must be corporate officer and is vicariously liable for wrongful act of associated salesperson under RPL §442-c; restitutionnot attributed to corporate broker where no proof that funds illegally obtained were collected by or in any way benefitted the corporation; DOS has no power to assess damages; representative broker not required to supervise another representative broker and not liable for misconduct of another representative broker who meets test of RPL §442-c; complaint dismissed as to other representative broker

21 DOS 94 Matter of DOS v. Kemmer - DOS fails its burden of proof of unlicensed activity; DOS investigator does not arrive in time for hearing; case dismissed

46 DOS 94 Matter of DOS v. Medina - applicant proves requisite experience for licensure as broker; DOS fails to prove untrustworthiness; omission of answer to question on application was explained and is not by itself sufficient evidence of untrustworthiness

94 DOS 94 Matter of DOS v. Pilato - conduct of business under unlicensed name (RPL §441[1]); confusingly similar name (175.18); change of association notice required regarding change from and to licensed broker, not an unlicensed entity; failure to prove by substantial evidence that corporate broker is liable for violations, as the representative broker was not acting as the agent of the corporation when the violation occurred and the corporate broker did not retain the benefit of the wrongful act

72 DOS 94 Matter of DOS v. Sampson - failure to prove that licensees neglected to provide RPL §443 disclosure note or the retention of a fee for renting an illegal apartment

53 DOS 94 Matter of DOS v. Bennett - DOS has jurisdiction to determine charges brought during 2-year period during which licensee may renew; DOS bears burden of proof; failure to establish that monies not paid were required deposit; licensee had right to raise claim of valid reason for not paying promissory note and have bona fideadjudication in court (even if loses in court); licensee not untrustworthy for failure to pay judgment where complainant failed to establish he was able to do so; licensee not untrustworthy because of discharging judgment in bankruptcy

97 DOS 94 Matter of DOS v. Swift - presumption of delivery of mailed notice; DOS has burden of proof; evidence of check returned for insufficient funds is not presumptive evidence of insufficiency of funds at time of issuance of check, which is material element of offense of issuing a bad check; proof that representative broker issued check for commission on account of unlicensed entity and that it was twice dishonored for insufficient funds does notconstitute substantial evidence of untrustworthiness or incompetence; no vicarious liability where failure to prove representative broker acted wrongfully

100 DOS 94 Matter of DOS v. Hunt - DOS failed its burden of proof that advertising, which does not reveal the licensure status or fails to specifically identify resident telephone number, is improper; no proof of dishonest or misleading advertising (RPL §441-c) or violation of Regulation 175.25

139 DOS 94 Matter of DOS v. Bonet - DOS fails its burden of proof of violation of RPL §443; no proof that apartment building was a 1-4 family dwelling

113 DOS 94 Matter of Carroll - DOS has jurisdiction to determine fraud or fraudulent practice or untrustworthiness and incompetence as to activity which could be violation of other law, such as Labor Law; no jurisdiction of respondent who was unlicensed when alleged unlawful acts occurred and not licensed when notice of hearing and complaint served; DOS fails to prove fraud or misrepresentation in disclosure notices; failure to prove time correlation of work as salesperson and collection of unemployment insurance; failure to prove false statement to collect unemployment insurance; fraudulent practice doesn't require intent; General Business Law §349(a) deceptive act or practice; failure of proof of violation of RPL §443(e)(5)

139 DOS 94 Matter of Bonet - DOS fails to establish dwellings involved were 1-4 family dwellings covered by RPL §443

13 DOS 95 Matter of Skydell - jurisdiction to adjudicate after expiration of license where eligible to renew; collateral estoppel as to fact findings by Division of Housing and Community Renewal; liability of broker for actions of partnership in which he was general partner irrespective of actual knowledge of wrongful acts; DOS not empowered to order restitution of illegal rent overcharges; failure to pay a fine may be challenged only in a subsequent disciplinary hearing; no direct liability for non-participation and un-involvement in corporate acts; no vicarious liability of corporate officers, directors or shareholders for wrongful acts of corporation; actual knowledge required for vicarious liability; broker presumed to know the law; failure to establish representative broker was directly responsible or vicariously liable for failure to disclose ownership interest in violation of 19 NYCRR §175.6; failure to deliver duplicate original of lease in violation of 19 NYCRR §175.12; retaining an unearned fee in violation of RPL §441-c; financial inability to pay judgments is good defense to charge of willful failure to satisfy judgment; efforts to meet obligations and refusal to file for bankruptcy demonstrate willingness to attempt to pay debts; pleading notconformed to change availing or failure of supervision, as these charges were not with in the broad composition of complaint and not actually litigated

14 DOS 95 Matter of Myers - broker who assists buyer in obtaining mortgage on other property to facilitate down payment is agent of buyer; broker is seller's agent in purchase transaction; as buyer's agent, depositing of down payment in his operating account violates 19 NYCRR §175.1; as seller's agent, depositing in operating account does not violate 19 NYCRR §175.1; conversion of deposits, but no proof of grand larceny as no proof to permanently deprive; fraudulent practices in failing to forward deposit; where only commission is for mortgage, no proof of unearned commission; vicarious liability of corporate licensee for acts of representative broker; restitution of money to which not entitled, with interest

24 DOS 95 Matter of Seplow - disciplinary charge jurisdiction where licensee's renewal has been previously denied; proof of service of process; agency relationship and duties; fraud in sale of cooperative apartment, including false information about particular sale and willful non-disclosure of material information; failure to obey buyer's obvious intent to have deposit treated as funds to be held in escrow as payments to seller; conversion; rules applicable to supplemental pleadings - absent surprise or prejudice, motion to file and serve could be granted on day of hearing, but here respondent doesn't appear, so supplemental complaint dismissed without prejudice; DOS fails its burden of proof as to extortion and retention of unlawful commission and unauthorized practice of law; when respondent became optionee to purchase subject matter, agency relationship ceased to exist; fiduciary duty precludes respondent from acting simultaneously as agent and principal in a transaction; restitution of $35,000 deposit plus interest at legal rate for judgments

36 DOS 95 Matter of Rubino - DOS testers; DOS fails to prove steering

144 DOS 95 Matter of DOS v. Botas - DOS as party initiating hearing has burden to prove, by substantial evidence, the truth of the charges in the complaint; substantial evidence is that which a reasonable mind could accept as supporting a conclusion or ultimate fact; DOS fails to meet burden; complaint dismissed.

139 DOS 97 Matter of DOS v. Martin - hearing may proceed ex parte as service of notice of hearing is sufficient where it is mailed to respondent’s last known business address by certified mail; broker not guilty of failing to cooperate with DOS investigation where broker’s statement that documents had been misplaced was unrefuted; providing false information to investigators violates RPL §442-e(5); broker allows unlicensed wife to act as real estate salesperson; broker not held to violate agency disclosure provisions of RPL §443 where DOS fails to establish property was a one-to-four family dwelling; broker violates 19 NYCRR 175.7 by failing to disclose to the parties whom he was representing; broker did not violate 19 NYCRR 175.7 when he accepted two commissions in the same transaction, from tenant and DSS on behalf of tenant, because DSS was not a party to the transaction; broker retained an unearned commission when paid same commission by tenant and DSS and refused to return commission to tenant; four months’ license suspension and forfeiture of both commissions with interest

274 DOS 97 Matter of DOS v. Fee - due process; laches; fraudulent practice; duty to supervise sales associates; disclosure of agency relationships; vicarious liability; DOS is not estopped from proceeding with investigation after issuing letter to broker advising that DOS was contemplating no further action and was closing the file; broker’s defense of laches fails where broker fails to establish substantial prejudice arising out of the delay; DOS fails to establish salesperson’s conduct was a fraudulent act where, although salesperson knew representations were false and she intended purchasers to act on the misrepresentation, DOS failed to establish that purchasers detrimentally relied on misrepresentations; salesperson engaged in fraudulent practice by making misrepresentation to purchasers (salesperson misrepresents reasons for previous purchasers not going forward with transaction); DOS fails to establish violation of RPL §443 by failing to establish that disclosure form presented in evidence was the disclosure form related to the sale of the subject property; inconsistency in complaint is immaterial where complaint gives respondent sufficient notice of the charges; corporate broker and representative broker demonstrated incompetency by employing unlicensed associate broker; representative broker’s reliance on unofficial lists of licensees supplied by County Board of Realtors is misplaced and demonstrates incompetency; representative broker and corporate broker are vicariously liability for misconduct of salesperson and associate brokers where they have actual knowledge of the misconduct; commission arising out of unlicensed activity of associate broker is unearned; corporate broker and representative broker fined $1,000.00 and directed to disgorge commission of $6,125.00, plus interest; salesperson fined $1,000.00; unlicensed associate broker fined $500.00 and directed to disgorge unearned commission of $6,125.00, plus interest

290 DOS 97 Matter of DOS v. Balram - proof of qualifying experience; material misstatement on application; failure to cooperate with DOS investigation; RPL §441(3)(a) applies to all renewal applications for a real estate license for any license period commencing November 1, 1995 and thereafter; falsely stating in an application to renew a salesperson’s license that the continuing education requirement has been completed is a material misstatement; applicant’s affirmation on renewal application establishes intent to mislead DOS; DOS fails to prove that licensee had actual or implied knowledge of DOS’s requests for information and fails to establish violation of RPL §442-e(5); licensee failed to timely comply with the real estate salesperson’s continuing education requirement; two months license suspension

294 DOS 97 Matter of DOS v. Greene - proof of qualifying experience; material misstatement on application; failure to cooperate with DOS investigation; RPL §441(3)(a) applies to all renewal applications for a real estate license for any license period commencing after November 1, 1995; applicant incorrectly stated on renewal application that he had completed required continuing education course as he mistakenly believed that a real estate computer course satisfied the statutory requirement; DOS fails to prove licensee refused or failed to cooperate with an investigation as it fails to prove licensee had actual or implied knowledge of DOS’s requests; applicant failed to comply with the continuing education requirements of RPL §441(3)(a); salesperson’s license revoked

307 DOS 97 Matter of DOS v. Richards - proof of qualifying experience; material misstatement on application;applicant violates RPL §442-e(5) for failure to cooperate with DOS investigation; DOS fails to establish applicant’s failure to comply with continuing education requirement as a result of applicant’s failure to cooperate in answering DOS questions or appearing at hearings; fact that applicant may have been wrongfully licensed for a substantial period of time is taken into consideration in determining penalty; salesperson’s license suspended until such time as proof is submitted that applicant satisfactorily completed the requisite approved continuing education courses; in the event applicant had not completed continuing education requirements timely, license further suspended for a period of time equal to the amount of time prior to the issuance of order of suspension that applicant was improperly licensed plus two months

316 DOS 97 Matter of DOS v. Anderson - proof of qualifying experience; failure to cooperate with DOS investigation; due process; failure to appear at hearing; hearing may proceed ex parte where there is proof of proper notice of hearing; applicant fails to complete the required continuing education course; applicant’s refusal or failure to submit requested materials constitutes violation to cooperate (RPL §442-e(5)) where licensee has knowledge (actual or implied) of DOS’s request and refuses or fails to comply; DOS fails to prove respondent had actual or implied notice of DOS’s requests; salesperson’s license revoked

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

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

336 DOS 97 Matter of DOS v. Reyes - accounting to client; deposits; DOS fails its burden of proof; licensee violates 19 NYCRR 175.1 by depositing rents in the management of client’s business into his operating account; licensee fails to fully account for insurance proceeds and pays himself management fees well in excess of amount agreed to; DOS fails to prove licensee wrongfully closed client account, improperly monitored charges assessed in the operation of client’s apartment business and failed to pay insurance premiums; broker required to refund excess commissions earned plus interest and to fully account for monies claimed expended for maintenance and repair; broker’s license is suspended for 6 months and until such time as proof submitted of refund of excess commissions and accounting

351 DOS 97 Matter of DOS v. Ocasio - cease-and-desist; DOS fails its burden of proof; an essential element of a charge of soliciting a listing for sale from a person on a cease-and-desist list is that the solicitation was delivered to the homeowner at her home; DOS fails to establish that solicitation was received at homeowner’s home; homeowner fails to testify at hearing, fails to provide envelope within which soliciting flyer was received and provides unsworn statement; charges dismissed

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

359 DOS 97 Matter of DOS v. Lugo - deposits; adjournments; DOS fails its burden of proof; fraudulent practices; due process; ex parte hearing is permissible upon proof of proper notice of hearing; DOS fails its burden to prove commingling of funds; unlawful retention of deposit monies in two separate transactions is a fraudulent practice; affirmative misrepresentation of fact constitutes fraud; broker fails to pay judgment and failed to establish inability or other valid reason for failure to satisfy same; broker obtains and retains fee that was not related to the actual performance of some legitimate service by him on behalf of his principal; broker’s license revoked and restitution, with interest, directed for illegally obtained commissions and to satisfy judgment

361 DOS 97 Matter of DOS v. Deyonge - proof of qualifying experience; material misstatement on application; falsely stating on a renewal application that licensee met the continuing education requirement is a material misstatement; licensee did not intentionally make false statement; DOS fails its burden of proof that licensee deliberately made a material false statement; salesperson’s license revoked, decision without prejudice to subsequent application for licensure upon compliance with education requirements

368 DOS 97 Matter of DOS v. Flower - proof of qualifying experience; due process; ex parte hearing is permissible upon proof of proper notice of hearing; DOS fails its burden of proof; licensee fails to cooperate with DOS investigation where licensee fails or refuses to respond to audit letters and fails to attend requested meeting; DOS fails to meet its burden to establish licensee cannot fulfill continuing education requirement where licensee fails to respond to audit letters, fails to appear at requested meeting and fails to appear at hearing; salesperson’s license suspended until licensee presents proof of compliance with continuing education requirement

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

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

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

65 DOS 98 Matter of DOS v. Perrello - fraudulent practice; DOS fails its burden of proof; DOS fails to establish that broker had knowledge that the basement leaked and that there were problems with the plumbing fixtures and pipes and that broker failed to disclose such facts to the purchaser; purchaser never met with broker and broker was not asked about the basement or the condition of the plumbing; buyer’s broker requested listing broker to sign property condition disclosure form at time of contract, but listing broker refused to do so stating same was not required; complaint dismissed

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

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

107 DOS 98 Matter of DOS v. Sosis - subject matter jurisdiction; due process; failure to appear at hearing; proper business practices; deposits; fraudulent practice; DOS fails its burden of proof; DOS has subject matter jurisdiction if at the time the disciplinary proceeding was commenced by proper service of a notice of hearing and complaint the party was (i) licensed to engage in regulated real estate activities, or (ii) an applicant for either a license or for the renewal of a license to engage in regulated real estate activities, or (iii) eligible to automatically renew the prior license under the two-year limitation provision of RPL §441(2); ex parte hearing is permissible upon proof of proper notice of hearing; DOS has subject matter jurisdiction where party was licensed at the time proceeding was commenced and, where at time of hearing, although not licensed was eligible to automatically apply to renew pursuant to RPL §441(2); licensee operated a real estate brokerage business under an unlicensed name; licensee unlawfully retains deposit funds after deposit monies were delivered on the condition that same were to be disbursed only on the principal’s consent and approval and said consent and approval was not given; licensee’s illegal exercise of right of ownership over his principal’s funds spawns conversion and constitutes a fraudulent practice; DOS fails its burden of proof to establish licensee failed to deposit trust funds in a segregated escrow account, engaged in fraud and changed business location without notice to DOS; restitution ordered in the amount of $1,900 plus interest, fine of $1,000 and any further application for licensure shall not be considered until applicant pays said fine and provides proof of payment of restitution

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

190 DOS 98 Matter of DOS v. Annunziata -- due process; DOS fails its burden of proof; failure to appear at hearing; failure to cooperate with DOS investigation; proof of qualifying experience; ex parte hearing may proceed upon proof of proper service; DOS fails its burden of proof that licensee failed to meet continuing education requirement where licensee’s renewal application indicated that the requirement was met and licensee failed to appear at hearing; licensee failed to cooperate with DOS investigation by failing to respond to audit letter and to appear and provide proof of continuing education requirements; salesperson’s license suspended until such time as proof submitted of satisfactory completion of continuing education requirements; additional suspension equal to the amount of time, if any, improperly licensed plus two months

195 DOS 98 Matter of DOS v. Naraine -- proof of qualifying experience; DOS fails its burden of proof; licensee improperly obtained renewal of license by making false statement on application regarding; continuing education requirements; false statements made mistakenly as applicant believed he was exempt and, in any case, met the requirement by taking courses which were not approved; DOS fails to establish that licensee failed to cooperate; $500 fine

203 DOS 98 Matter of DOS v. Shariff -- cease and desist; DOS fails its burden of proof; DOS fails to establish how improper solicitations were received at two homes listed on cease-and-desist list; broker provided pre-addressed cards for homes not listed on the cease and desist list, instructed assistant not to deliver cards to homes on the list and provided the assistant with a copy of the cease-and-desist list; charges dismissed

246 DOS 98 Matter of DOS v. Cirrincione -- DOS fails its burden of proof; proof of qualifying experience; failure to appear at hearing; DOS fails its burden of proof in establishing licensee failed to meet continuing education requirements where licensee failed to appear at hearing and DOS presented no proof of licensee’s failure; licensee not faulted for failure to respond to audit request or to appear at hearing where DOS sent notice to an address at which DOS was aware the respondent no longer worked; complaint dismissed

250 DOS 98 Matter of DOS v. Kay -- proof of qualifying experience; DOS fails its burden of proof; failure to cooperate with DOS investigation; failure to appear at hearing; DOS fails to prove that applicant did not meet the continuing education requirements where the applicant did not appear at the hearing and DOS presented no proof of the applicant’s failure; applicant failed to cooperate with DOS investigation by not responding to the continuing education audit letter; salesperson’s license suspended until proof provided of completion of continuing education requirement; additional suspension for a period of time, if any, equal to the amount of time improperly licensed plus 2 months

263 DOS 98 Matter of DOS v. Ingber — proof of qualifying experience; DOS fails its burden of proof; DOS fails to prove failure to cooperate with DOS investigation where applicant replied to audit request letters and request for telephone conference and although applicant expressed a desire to surrender his license, failed to do so; applicant failed to meet the continuing education requirements; salesperson’s license revoked

285 DOS 98 Matter of DOS v. Laurino -- proof of qualifying experience; DOS fails to prove failure to cooperate with DOS investigation where audit letter was not responded to because of a misunderstanding, the applicant advised DOS she was unable to keep a scheduled appointment and responded to a third audit letter; applicant did not meet the continuing education requirements; salesperson’s license suspended for duration of time unlawfully licensed or until termination date of unlawfully issued license, whichever occurs first

121 DOS 98 Matter of DOS v. Polanco -- cease and desist; DOS fails its burden of proof; flyer that attempts to obtain a listing of residential property for sale is a solicitation within 19 NYCRR 175.17; DOS failed to prove violation of cease and desist regulation where evidence consisted of one solicitation to homeowner on cease and desist list and there is no evidence of how or when this solicitation reached the homeowner’s premises

149 DOS 98 Matter of DOS v. Lise -- due process; failure to appear at hearing; failure to cooperate with DOS investigation; DOS fails its burden of proof; proof of qualifying experience; salesperson fails to comply with DOS investigation when failed to cooperate with DOS requests for information regarding education requirement; DOS failed to prove non-fulfillment of continuing education requirement where licensee affirmed under penalty of perjury that she completed the continuing education requirement; salesperson’s license suspended until licensee provides proof that she has completed the continuing education requirement

152 DOS 98 Matter of DOS v. Trachtenberg -- proof of qualifying experience; DOS fails this burden of proof; DOS renews salesperson’s license despite applicant’s admission that he failed to comply with the continuing education requirements; applicant complies with DOS requests for conference; DOS did not demand surrender of unlawfully issued license; although applicant unlawfully licensed for a period of nine months, no evidence of misconduct by applicant; complaint dismissed

26 DOS 99 Matter of DOS v. Bronson - failure to pay judgment; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; DOS fails its burden of proof to establish broker made false statement with intent to deceive regarding property conditions; broker negligently makes misstatement to buyer; failure to pay judgment demonstrates untrustworthiness unless broker presents valid evidence of inability to pay; broker fails to appear to provide evidence; submission of unverified written answer is insufficient evidence to prove inability to pay judgment; broker’s license suspended until broker submits proof he has fully paid judgment

62 DOS 99 Matter of DOS v. Absolute Auction and Realty, Inc. — auctions; DOS fails its burden of proof; in performing agency agreements, licensees’ contractual and rational duties owed to a principal must be balanced with the duties owed to third parties to the agency business (the registered bidders at auction); seller’s agent not required to disclose to registered bidders prior to the auction and sale that some of their employees are stockholders and officers of a registered, corporate bidder that is a bona fide potential purchaser; broker fulfilled contractual and rational obligations owed to sellers where sellers understood and accepted the agency contract, including the terms of compensation of commission and buyers’ premium, and were fully aware of and consented to the bidding at auction; permissible to have bona fide potential buyer, which is a corporation as to which employees of the seller’s real estate broker were officers and stockholders; complaint dismissed

140 DOS 99 Matter of DOS v. Nrekic - apartment information vendor; bad check; DOS fails its burden of proof; engaging in unlicensed activity as apartment information vendor; although broker’s check was returned for insufficient funds when presented, fraud requires evidence to establish that the broker did not have an account with or had insufficient funds at the time check was uttered; DOS fails to establish insufficient funds at time check uttered and fails to establish broker employed an unlicensed salesperson, demanded and retained unearned commissions, and failed to indicate in advertisement he was a real estate broker; $1,000.00 fine

292 DOS 99 Matter of DOS v. Simmons - bad check; DOS fails its burden of proof; failure to cooperate with DOS investigation; unearned commissions; mistaken issuance of a bad check is incompetency; DOS fails to establish that broker commingled funds or failed to satisfy a judgment; broker fails to cooperate with DOS investigation by misleading its investigators; DOS must show that broker acted in bad faith to establish retention of an unearned commission as untrustworthiness; $750.00 fine

272 DOS 00 Matter of DOS v. Joseph - failure to appear at hearing; ex parte hearing may proceed upon proper notice; DOS fails its burden of proof that listing broker failed to make the required agency disclosure when the listing broker purchased his own listing; complaint dismissed

137 DOS 01 Matter of DOS v. Polanco - cease and desist; DOS fails its burden of proof; hearsay; hearsay testimony, although admissible, is not entitled to the same weight as sworn testimony subject to cross examination; DOS fails its burden of proof in establishing violation of cease and desist regulation where only evidence that flyer was delivered to home on the cease and list was homeowner’s hearsay letter that flyer was in her door; homeowner failed to appear at hearing; broker testified that flyer was left on automobile in a public place; complaint dismissed

745 DOS 01 Matter of DOS v. Vasquez - jurisdiction; DOS fails its burden of proof; unlicensed activity; duty to supervise sales associates; DOS retains jurisdiction over salesperson during automatic renewal period after salesperson’s license expired; DOS fails its burden of proof where it provides no evidence regarding one count in the complaint and where the evidence is equivocal and unclear with respect to another count; salesperson engages in unlicensed activity after license expired; broker fails to supervise salesperson where he allows the salesperson to engage in regulated real estate activity without a license; broker is not entitled to a commission for any real estate transaction effectuated by a salesperson who is not properly licensed in association with the broker; broker may be required to return commission as a condition of retention of his license where broker receives money to which he is not entitled; salesperson to be fined $250 if he reapplies for a license; broker fined $500 and license suspended until such time as he refunds $1,000 commission

921 DOS 01 DOS v. Greenberg - disclosure of agency relationships; failure to cooperate with DOS investigation; deposits; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; DOS fails to establish broker commingled client’s funds where all rent deposits were made into owner’s bank account even though some rents were purportedly deposited late; broker breaches duty of reasonable care, skill, diligence and judgment in negligently performing contractual obligations pursuant to a management agreement in keeping units rented to desirable tenants, diligently collecting rents and rendering timely monthly reports; DOS fails to prove broker engaged in fraud and fraudulent practices; broker fails to provide agency disclosure form to client; brokers license revoked

318 DOS 02 Matter of DOS v. Conciatori - DOS fails its burden of proof; disclosure of ownership interest; disclosure of conditions affecting the value or desirability of listed premises; broker and his wife listed their property with another real estate brokerage and informed the listing agent that the husband was a licensed broker; DOS failed to prove that broker/seller failed to disclose he was a licensed real estate broker where he disclosed his status to the listing broker at the time of the listing and provided the listing agent with a copy of his license; DOS failed to prove claim that seller/broker failed to adequately represent and/or misrepresented prior problems with a well where broker/seller made proper disclosures to the listing agent; complaint dismissed

357 DOS 02 Matter of DOS v. Elias - failure to appear at hearing; failure to pay judgment; proper business practices; deposits; DOS fails its burden of proof; restitution; ex parte hearing may proceed upon proof of proper service; respondent failed to fully satisfy a judgment obtained against him without showing that he was unable to do so; a rental broker is entitled to compensation only after procuring a rental agreement between tenant and landlord; retaining part or all of the deposit without obtaining a rental agreement demonstrates untrustworthiness and incompetency; restitution may be ordered as a condition to retention of the broker’s license where he has received money to which he is not entitled; unlawful for broker to operate real estate brokerage business at an address other than that which was stated on his application; broker operated his real estate business out of an address prior to obtaining a license for that address; DOS failed to prove that respondent commingled and converted deposits; real estate brokers license suspended for four months and an additional period of time until respondent proves he has paid the balance of the judgment

453 DOS 02 DOS v. Dodd – deposits; DOS fails its burden of proof; failure to appear at hearing; vicarious liability;ex parte hearing may proceed upon proof of proper service; broker breaches fiduciary duty to their seller client by accepting a purchase deposit less than that provided for in sales contract; commingling of deposits; broker allows escrow accounts to be overdrawn on various occasions; broker issues bad check from escrow account; DOS fails to establish when agency disclosure form was given and fails to establish violation of RPL §443; DOS fails to establish broker acted as dual agent; corporate broker responsible for acts of representative brokers; corporate and representative broker’s licenses revoked

827 DOS 02 DOS v. Vision Realty Corp. – bad check; disclosure of agency relationships; DOS fails its burden of proof; vicarious liability; salesperson and broker failed to provide agency disclosure form; representative broker retained an unearned commission in a rental transaction where prospective tenant neither occupied nor took possession of the rental accommodation; DOS fails to establish fraudulent practice, breach of fiduciary duty, misrepresentation, failure to supervise, failure to deal honestly with a member of the public, illegally retaining deposit monies or converting monies; notice of protest is presumptive evidence that check was dishonored but not presumptive evidence of insufficiency of drawer’s funds at the time of utterance; DOS fails to establish violation of bad check statute; salesperson admonished; corporate broker and representative broker ordered to refund $850.00 commission and pay $500.00 fine

972 DOS 02 DOS v. Elstein – deposits; DOS fails its burden of proof; proper business practices; unearned commission; broker refused prospective tenant’s demand for return of $200.00 deposit when repairs were not completed to apartment and a lease was not executed; broker illegally retained and converted deposit monies; DOS fails to establish that broker retained an unearned commission; broker ordered to refund $200.00 deposit and to pay $1,000.00 fine

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

1000 DOS 02 DOS v. Olson – DOS fails its burden of proof; failure to pay judgment; DOS fails to establish that broker retained an unearned commission and converted or commingled deposit money; broker earned commission acting as agent of the purchaser when broker secured the agreement of the owner to sell mobile home to the purchaser; broker paid judgment and delay is excused by broker’s financial difficulties; charges dismissed

185 DOS 03 DOS v. Freeman – DOS fails its burden of proof; notarization; failure to cooperate with DOS investigation; DOS fails to prove that broker authorized or permitted the use of either his notary stamp or his signature to take acknowledgments of documents; DOS did not offer evidence of either the investigator’s notes usually taken during the interview or the written investigative report usually made just after the interview; broker failed to cooperate with DOS investigation by failing to respond to investigator’s request for a written statement of information orally supplied to investigator which broker purportedly promised to provide; broker admonished

331 DOS 03 DOS v. Skarvelis – DOS fails its burden of proof; proper business practices; no licensed salesperson may own any voting shares of stock in any licensed real estate brokerage corporation with which the salesperson is associated; DOS fails to prove that salesperson was ever associated as a licensed real estate salesperson with broker at a time when she held voting rights and an ownership interest in the brokerage; complaint dismissed

770 DOS 03 DOS v. Manhattan Living Inc. - DOS fails its burden of proof; incompetency; DOS fails to prove by substantial evidence that broker misrepresented facts, exacted an unconscionable commission, retained an unearned commission and acted as an undisclosed dual agent; DOS’s case in chief primarily presented through testimony of investigator who never met or interviewed individuals in person; broker demonstrated incompetency by negligently calculating amount of commission refund; corporate broker to refund $1,758.75

772 DOS 03 DOS v. Home General Realty Corp. - accounting to client; deposits; disclosure of agency relationships; dual agency; DOS fails its burden of proof; DOS fails to prove broker acted as an undisclosed dual agent and that broker failed to cooperate with DOS investigation where numerous written demands were not delivered to broker and were returned to DOS; broker failed to present to and obtain a signed agency disclosure form from its principles; broker failed to maintain an escrow account; broker deposited trust funds into its operating account; broker gave deposits to a “mortgage loan officer” without verifying the individual’s identity and business status; broker was unable to obtain return of monies paid to “mortgage loan officer”; broker ordered to refund $26,391.00

835 DOS 03 DOS v. Carello - disclosure of agency relationships; DOS fails its burden of proof; DOS fails to present any evidence on the issue of whether broker presented an agency disclosure form to client; broker breached his fiduciary duty to his tenant/client when broker allowed his salesperson to show an apartment to the tenant/client with the knowledge that the landlord would not rent the apartment to the prospective tenant as the landlord would only allow members of immediate family to reside in his apartments and prospective tenant included sister-in-law; broker also represented landlord and demonstrated untrustworthiness and incompetency by accepting a listing and offering an apartment with a restriction which violated RPL §235-f; broker ordered to refund commission in the amount of $1,000.00 and pay a fine of $750.00

925 DOS 03 Matter of Kennedy - DOS fails its burden of proof; material misstatement on application; suspension; DOS fails to prove that applicant made material misstatement on application by answering “no” to the question regarding revocations and denials of licenses (not about suspensions) where applicant had previously had a salespersons license suspended (721 DOS 02); DOS failed to prove that prior decision was served upon applicant; application for renewal of salespersons license granted, subject to the terms of the continuing suspension of the license pursuant to prior DOS matter as prior decision is now served upon applicant

646 DOS 04 DOS v. Harris - deposits; DOS fails its burden of proof; failure to appear at hearing; ex parte hearing may proceed upon proof of proper service; where purchase transaction dies, deposit monies retain status as escrow funds; broker must maintain deposit in his escrow account until either buyer and seller mutually agreed or there is a determination by a court of competent jurisdiction as to whom the money belongs; broker removes deposit from escrow as payment upon commission where small claims court determined that deposit was to be returned to purchaser; DOS fails to prove that broker failed to maintain records of his escrow account as 19 NYCRR 175.1 does not contain a specific requirement for the retention of such records and 19 NYCRR 175.23 does not refer to escrow account records; broker fined $1,000.00 and ordered to refund $500.00 with interest

696 DOS 04 DOS v. Polanco - DOS fails its burden of proof; unlicensed activity; failure to appear at hearing; exparte hearing may proceed upon proof of proper service; DOS fails to prove that broker paid a fee for licensed activity to an unlicensed person where DOS merely produced two checks made payable to a licensed broker with notation of name of unlicensed person; DOS fails to prove that broker acted as a representative broker of a corporate broker without being so licensed where broker was merely listed as an officer of the corporation and did no more than write checks on the corporate account; broker operated an unlicensed corporate real estate brokerage business without obtaining a license in the corporate broker’s name; $500.00 fine

811 DOS 04 DOS v. Owners’s Club Realty, Corp. - DOS fails its burden of proof; disclosure of agency relationships; unlicensed activity; DOS failed to prove that unlicensed person represented brokerage firm; DOS failed to prove that broker failed to provide agency disclosure form to consumer where form was presented and consumer refused to sign; DOS failed to prove that signature on agency disclosure form was a forgery; DOS failed to prove broker improperly recommended to buyer the employ of a certain attorney; DOS failed to prove brokerage agreement was unlawful without consideration, vague and indefinite and not in the best interest of the seller; brokerage agreement between buyer, seller and broker for the sale of seller’s property to a specified buyer is not a listing agreement within meaning of 19 NYCRR 175.24 and therefore it is not applicable; complaint dismissed

993 DOS 04 DOS v. Thompson - failure to cooperate with DOS investigation; DOS fails its burden of proof; DOS failed to prove respondent failed to cooperate with DOS investigation where DOS requested information regarding brokerage activities of a real estate salesperson associated with respondent, respondent replied stating that salesperson did not conduct any business in broker’s office, DOS did not receive broker’s response letter, DOS sent a subsequent letter, broker contacted DOS again and sent a second letter which was never received by DOS’s investigator; complaint dismissed

185 DOS 05 DOS v. Britt - disclosure of conditions affecting the value or desirability of listed premises; DOS fails its burden of proof; res judicata; judgment rendered in civil court between buyer and seller is not controlling in administrative proceeding against licensee where DOS and licensee were not parties in the civil suit and professional conduct of the licensee was not litigated; duty of disclosure to a buyer by a seller’s agent is derivative; seller’s agent must make the same disclosure to a buyer that the law requires a seller to make; disclosure by seller’s agent to buyer’s agent of the condition of the property as known by seller’s agent was timely, proper and essentially a disclosure to buyer of that information; DOS has failed to prove by substantial evidence its allegation that basement flooding was a common occurrence or that broker was fully aware that homes in the neighborhood where the property is located encountered frequent flooding; complaint dismissed

291 DOS 05 DOS v. James - DOS fails its burden of proof; hearsay; interim order suspending license pending completion of hearing; rejection of entire testimony; continuance; request of respondent/salesperson for continuance to obtain legal counsel after testimony of her representative broker granted; entire testimony of representative broker rejected where both counsel for respondent/salesperson and counsel for DOS subpoenaed broker to appear for cross examination and broker failed to appear; representative broker, as complaining consumer, charges salesperson with receiving and retaining a brokerage fee from a person other than the representative broker; hearsay testimony of DOS investigator is considered unreliable where it is based upon stricken testimony of broker and statements made to the investigator by the buyer who did not testify; DOS fails to prove by substantial evidence the allegations of the complaint; complaint dismissed and prior order suspending salesperson’s license pending a determination of the State’s complaint is vacated

772 DOS 05 DOS v. Silva – unauthorized practice of law; failure to cooperate with DOS investigation; DOS fails it’s burden of proof; DOS fails to establish salesperson engaged in the unauthorized practice of law and breached it’s fiduciary duties by telling prospective tenant that New York State law provides a 48 hour lease cancellation; salesperson agreed to pay landlord $1,850.00 in exchange for release of tenant and thereafter, after landlord issued tenant a release, stopped payment on his check; DOS lacks authority to assess monetary damages; salesperson pursued transaction without the knowledge and assistance of his broker; salesperson provided false information to DOS in the course of it’s investigation; salesperson’s license suspended for one year.

 

64 DOS 06 DOS v. Caputo- material misstatement on application; proof of qualifying experience; DOS fails its burden of proof; salesperson failed to provide proof that she completed the mandatory continuing education requirement after twice being a given the opportunity to do so; salesperson failed to appear at hearing; DOS failed to produce proof that salesperson failed to comply with the continuing education requirement and lied about it on her application and such charges are dismissed; salesperson’s license is suspended until such time as she shall have provided proof of compliance with the continuing education requirement

79 DOS 06 DOS v. Barrows- proof of qualifying experience; material misstatement on application; DOS fails its burden of proof; salesperson affirmed on his license renewal application that he had completed the mandatory continuing education requirement; salesperson failed to provide proof of completion of continuing education requirement although given two opportunities to do so and offered an opportunity to pay a fine and complete the continuing education courses; DOS failed to prove that salesperson failed to comply with the continuing education requirement as salesperson failed to appear at hearing and failed to respond to DOS’s requests; salesperson suspended until proof of completion of continuing education provided

80 DOS 06 DOS v. Ramcharran- proof of qualifying experience; material misstatement on application; DOS fails its burden of proof; salesperson affirmed on his license renewal application that he had completed the mandatory continuing education requirement; salesperson failed to provide proof of completion of continuing education requirement although given two opportunities to do so and offered an opportunity to pay a fine and complete the continuing education courses; DOS has failed to prove that salesperson failed to comply with the continuing education requirement as salesperson failed to appear at hearing and failed to respond to DOS’s requests; salesperson suspended until proof of completion of continuing education provided

137 DOS 06 DOS v. Turner- DOS fails its burden of proof; unauthorized practice of law; DOS fails to prove that broker failed to disclose purchase offers to her principal as evidence established that seller was informed and did discuss all offers and gave consideration to each; broker engaged in the unauthorized practice of law by preparing a purchase contract and failing to show that the form was prepared under the proper auspices in accordance withDuncan & Hill Realty v. DOS

154 DOS 06 DOS v. Cole- proof of qualifying experience; DOS fails its burden of proof; salesperson affirmed on his license renewal application that she had completed the required continuing education courses; upon receipt of DOS’s request for original course completion certificates, salesperson, for the first time, found out that three credit hours were not approved for continuing education credit; salesperson immediately completed the next continuing education class and then answered DOS’s question affirmatively that she had completed the continuing education requirement; charge that salesperson failed to provide proof that she had completed the requisite continuing education dismissed; charge that salesperson falsely affirmed that she had completed the continuing education requirement dismissed where salesperson believed in good faith that she had fully complied with the continuing education requirements at the time of the license renewal application; complaint dismissed

526 DOS 06 Matter of Cruz- proof of qualifying experience; failure to cooperate with DOS investigation; salesperson fails to provide proof of requisite experience for license as a real estate broker; documentation provided by salesperson was from activity he engaged in while not licensed by DOS as being associated with brokerage and for a broker who would not attest to the salesperson’s experience; DOS fails to establish that salesperson failed to cooperate where DOS informed salesperson that his submission of documentation was insufficient to qualify him for licensure and that he “may” submit additional documentation, such request was permissive and not obligatory and therefore salesperson’s failure to provide additional information was not a failure to cooperate on his part; application for license as a real estate broker denied

549 DOS 06 DOS v. De Maria- proof of qualifying experience; DOS fails it burden of proof; applicant affirmed that she had completed the mandatory continuing education on her salesperson’s license application renewal; DOS requested applicant to provide proof that she had completed the mandatory continuing education; DOS failed to produce any evidence as to weather the letter was delivered and letter sent to both home and business addressees was returned unclaimed; evidence fails to establish that applicant received the request for proof and, in the absence of a response from applicant, that she did not fulfill her requirement; complaint dismissed

701 DOS 06 DOS v. Martinez- cease and desist; DOS fails its burden of proof; evidence established that solicitation was left for the owners at a home listed on the cease and desist list but did not establish how the card got to that home; salesperson’s credible testimony established that he regularly maintains copies of the cease and desist lists, that he is very careful about where he goes and leaves his cards and that it could not have been him who placed the card on the door of the home on the cease and desist list; complaint dismissed

550 DOS 06 DOS v. Fellrath- appraisers; proof of qualifying experience; failure to cooperate with DOS investigation; DOS fails its burden of proof; failure to appear at hearing; applicant affirmed on his renewal application that he had completed the required continuing education; applicant failed to respond to DOS letters requesting proof of completion of continuing education requirement; applicant failed to respond to DOS demands for proof of continuing education; in the absence of any replies from applicant, DOS failed to prove that applicant did not take the required continuing education courses and that charge is dismissed; applicant failed to produce evidence of satisfactory continuing education requirements; license as a real estate appraiser assistant revoked

993 DOS 06 Matter of Donaldson – appraiser assistant, continuing education, failure to appear, opportunity to settle, DOS fails burden of proof due to absence of reply from respondent, as to continuing education, applicant fails to produce proof of satisfactory completion

3 DOS 07 Matter of Clark – failure to refund deposit, bad check, equivocal evidence on agency status and disclosures, untrustworthiness, restitution and $1,000 fine

11 DOS 07 Matter of Saraceno – continuing education, inadvertent non-compliance, exigent circumstances, dismissal

239 DOS 07 Matter of .Nickerson- residential appraiser; failure to take required continuing education; misinformed by employee that taking course in same month as renewal is not violation; explanation sufficient to reduce sanctions

513 DOS 07 Matter of Balfour- appraiser; failure to complete continuing education; inadvertent noncompliance as result of misunderstanding, not untrustworthiness or incompetence; complaint dismissed

516 DOS 07 Matter of Reich- appraiser, failure to complete continuing education, adequate explanation of problem with on-line course, part of which was beyond her expertise and required additional information, which she procured and then completed the course; complaint dismissed

1412 DOS 08 Matter of Johnson – broker; DOS fails burden of proof of relocation to unlicensed location; no requirement that broker offer be open at any particular time or at all

126 DOS 09 Matter of Ghera—salesperson; qualifying experience; insufficient evidence

259 DOS 09 Matter of Ward – appraiser; CE: failure of proof charge dismissed

388 DOS 09 Matter of David – salesperson; failure of proof re: charge of failure to make refunds (testimony of cash refunds); improper holding out as licensed with former broker; dismissal of charge of unearned commission; restitution of deposits; $1,000 fine

767 DOS 09 Matter of Mahoney – agency disclosure; breach of fiduciary duty; insufficient evidence that licensee removed items prior to closing; $500

973 DOS 09 Matter of Sroka – unearned commission; failure to pay judgment; $500 fine or 2-month suspension; repay $2,020 judgment with charges against salesperson; dismissed for lack of proof

1026 DOS 09 Matter of Duke—failure of proof of unlicensed activity; fraud and failure to supervise; complaint dismissed

1111 DOS 09 Matter of Reefer – salesperson; CE; failure to serve at residence address; dismissal without prejudice

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Third quarter Legal Lines now available

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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