23A. Hearsay

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

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

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

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

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