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2. Administrative Appeals

15 DOS APP. 97 (215 DOS 97) Piche v. DOS - administrative appeal; statute of limitation; appeal of administrative hearing denying broker’s license is time barred where appellant fails to submit memorandum of appeal within thirty days of receipt of the decision of the Office of Administrative Hearings as required by 19 NYCRR 400.2(k); appellant incorrectly relied upon 19 NYCRR 400.13 setting forth the time periods that must be observed by the Secretary of State and Office of Administrative Hearings in concluding adjudicatory proceeding; appeal dismissed

16 DOS APP. 97 (247 DOS 97) Abreu Realty v. DOS - administrative appeal; appeal of a decision of the Office of Administrative Hearings must be made within thirty calendar days of receipt of the decision (19 NYCRR §400.K); appeal not timely filed, dismissed

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

2 DOS APP 99 (2 DOS 99) Matter of Moore v. DOS - administrative appeal; disclosure of agency relationships; unearned commissions; on appeal, the Secretary may review questions of procedure, facts, law and policy, and may choose to expand the record by directing oral argument (19 NYCRR §400.2[k]); broker fails to timely provide agency disclosure form; broker’s argument that it is custom and practice in Rockland County to present the disclosure form at the time a prospective buyer makes an offer on a home (as opposed to prior to entering into a listing agreement as a buyer’s agent or at the time of first substantive contact with the buyer when a seller’s agent) is unavailing where no evidence presented to support this position and, in any event, wide spread non compliance does not justify failure to adhere to clear mandate of statute; broker did not represent buyer in transaction by merely agreeing to provide prospective buyer with appraisal; failure to provide appraisal amounts to breach of contract, not fraud, and constitutes failure to deal honestly with the public; receiving confidential information from prospective buyer while not representing buyer and not disclosing to buyer that broker would use this information constituted untrustworthiness and incompetency, but not fraudulent practice; substantial evidence fails to support determination that broker clearly knew he was not entitled to a commission (broker consulted with attorney), even though commission suit fails; penalty of revocation is lawful sanction, although lesser penalty will be imposed based upon facts in record; determination of license revocation modified, individual and corporate brokers’ licenses suspended for six months

3 DOS APP 99 (312 DOS 98) Matter of Zer - administrative appeal; attorney; failure of licensee to appear at prior hearing to review denial of application for renewal of license was properly deemed a withdrawal of request for a hearing; licensee fails to provide proof of claim that he was unable to appear at scheduled hearing due to emergency treatment; prior license was based on an exemption from the application of Article 12-A based upon status as attorney at law; applicant is no longer duly admitted to practice law and therefore is no longer eligible for exemption from the requirements of Article 12-A; prior determination denying renewal application confirmed

4 DOS APP 99 (27 DOS 99) Matter of Finke v. DOS - administrative appeal; licensee alleges complaining witness committed perjury in that his testimony at the hearing differed from his statement of complaint to DOS; statement of complaint was not introduced into evidence and is not part of record on appeal; licensee’s hearsay characterization of witness statement cannot be used to challenge witness’ credibility; decision is supported by credible testimony of complaining witness and supporting witness; administrative determination to suspend broker’s license and thereafter until proof submitted that broker repays commission plus interest is confirmed

232 DOS 99 Matter of DOS v. Livingston - due process; deposits; failure to cooperate with DOS investigation; ex parte hearing is permissible upon proof of proper notice of hearing; salesperson violates RPL §440-a by engaging in regulated real estate activity after the death of the broker with whom he was associated; salesperson does not violate 19 NYCRR 175.2, commingling deposits, as regulation does not apply to salespersons, however, such act constitutes untrustworthiness, incompetency and breach of fiduciary duty; issuance of check upon insufficient funds; failure to comply with DOS investigation by failure to provide requested documents which salesperson agreed he would provide; real estate salesperson’s license revoked

. CRC #98-1443 Matter of DOS V. Lando, Stipulation - broker stipulates to waive any right to appeal of DOS determination (164 DOS 99), including administrative appeal and appeal pursuant to CPLR Article 78; $2,000.00 fine and restitution of $354.00

1 DOS APP. 00 DOS v. Absolute Auction and Realty, Inc. - auctions; administrative appeal; no duty to disclose to bidders at an auction of real estate that an affiliate of the listing broker will be bidding on its own behalf; seller consented to arrangement whereby affiliate of listing broker would be bidder at auction on their own behalf; DOS fails to establish violation of 19 NYCRR §175.7 where the terms and conditions of the sale, including the seller and the buyer’s premium, were included in information provided to each bidder; determination of ALJ is confirmed

2 DOS APP. 00 Matter of DOS v. Marsala - administrative appeals; prior misconduct; application for salespersons license denied where presumption of rehabilitation based upon the issuance of a certificate of relief from disabilities rebutted where direct relationship exists between prior criminal activity (conviction for attempted enterprise corruption for bookmaking in affiliation with the Gambino crime family after retirement from police force as a police officer); determination of ALJ reversing DOS’s denial of salesperson’s license is reversed

4 DOS APP. 00 Re/Max All Pro Realty v. DOS - determination of ALJ to suspend broker and representative brokers’ licenses for six months affirmed; no finding of reversible error

5 DOS APP. 00 Matter of DOS v. Joseph - administrative appeals; vicarious liability; decision of ALJ that broker cannot be held vicariously liable for phone call of sales agent to homeowner on cease and desist list where broker had no actual knowledge of the violation is reversed and the matter is remanded; broker/owner can be held liable for the actions of his or her subordinates and may be sanctioned for any legal violations of employees, so long as the sanction does not include license suspension or revocation (Roberts Real Estate v. New York State Department of State, 80 NY 2d 116 [1992])

___ DOS APP. ___ Arjun v. DOS - Office of Administrative Hearings failed to apply the presumption that a court of general jurisdiction proceeded to judgment only after duly acquiring jurisdiction of the subject matter in determining that Supreme Court lacked jurisdiction to issue a certificate of relief from disabilities of applicant’s federal criminal conviction; determination vacated and matter remanded

399 DOS 00 Arjun v. DOS - (supersedes 342 DOS 00) - on appeal to Secretary of State, DOS in its order to vacate and remand established as policy of the agency that an issue of law not raised by the Division of Licensing Services cannot be considered by the Administrative Law Tribunal; on remand, application for real estate brokers license granted

6 DOS APP. 00 Gorr v. DOS - administrative appeals; failure to utilize agency disclosure form regarding property where a portion of the property was being utilized as a residence; failure to make clear for whom broker was working; failure to disclose broker was acting as both agent and principal in representing the seller and being a primary shareholder in the corporate purchaser; ALJ decision to revoke license affirmed and modified to order restitution in the amount of $23,000.00 for unearned commission for violation of fiduciary duties

1 DOS APP. 01 Wang v. DOS - administrative appeals; apartment information vendors; the office of administrative hearings has no jurisdiction to determine the constitutionality of the apartment information vendor statute; DOS may suspend a broker’s license for activities unrelated to the real estate license itself; violation of regulatory requirement unrelated to broker’s license as grounds for disciplinary action on broker’s license; licensee’s repeated failure to comply with the requirements of the apartment information vendor statute; license suspension upheld

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

2 DOS APP 02 Matter of Turyan v. DOS - decision of administrative law judge upheld where broker violated numerous fiduciary duties including advancing her own interests above those of her client, negotiating a contract to buy her client’s business without their permission and failing to disclose material facts relating to the sale of a business; brokers license revoked

4 DOS APP 02 Matter of DOS v. Hecht - business practices; commissions; broker’s past acts cannot be used against him as evidence of repeated misconduct on a charge of illegal business practices where such conduct is being now first reviewed for untrustworthiness; charging fees in excess of professional norms, absent a showing of unique services offered above and beyond those services normally rendered by a real estate broker, demonstrates untrustworthiness; broker’s current commission rates are far in excess of rates established by custom and usage; ALJ’s decision modified, license suspended until one month after broker refunds amount in excess of rates established by custom and usage

05 DOS APP 02 Greenberg v. DOS – administrative appeal; hearsay; restitution; hearing record is not expanded although Secretary has plenary authority to do so; acceptance of hearsay evidence is within the discretion of the ALJ; penalty other than revocation is considered in light of reversal of one of the findings of the ALJ; return of entire fee on continuing contractual relationship for the management of apartment rentals is not warranted; restitution for excessive fees is warranted; determination that broker breached his fiduciary duties of reasonable care, skill, diligence and judgment, that he charged excessive and unearned fees and violated RPL §443 affirmed; determination that broker violated RPL §442e(5) reversed; order of revocation modified to sixty days suspension and payment of restitution of $345.00

1023 DOS 04 DOS v. Harris - administrative appeals; deposits; matter remanded from Secretary of State on appeal (22 DOS APP 04) for a new hearing from default decision (646 DOS 04); where seller refused to comply with contract terms and purchaser canceled the transaction, requesting return of his $500.00 deposit, broker continued to hold earnest money deposit in his escrow account; deposit retained its status as escrow funds pending either agreement between buyer and seller or determination by a court of competent jurisdiction as to whom the money belonged; in a small claims action between buyer and seller, court determined that buyer was entitled to receive the deposit, nevertheless broker continued to hold deposit believing he needed the specific permission of the seller to release the funds; charge that broker failed to maintain records of his escrow account dismissed upon prior determination that Regulation 175.1 does not contain a specific requirement for the retention of such records; broker breached his fiduciary duties by not refunding deposit to buyer after small claims court determination of entitlement to deposit; broker reprimanded and ordered to refund $500.00 deposit to buyer

3 DOS APP 08 Liola v. DOS – appraiser; appeal; DOS affirmed penalty of suspension until completes required CE

125 DOS 09 Matter of Marciano – salesperson; qualifying experience; personal animus of supervising broker; appeal granted

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