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24. Initiation of New Proceeding Regarding Uncharged Violation

10 DOS 92 Matter of DOS v. Donati - DOS may initiate subsequent proceeding to litigate issues not charged as violations in current proceedings

131 DOS 93 Matter of Sitterly - consolidate separate complaints where common questions of law and fact would serve the interests of justice and administrative economy; contracts are presumed to express parties' intention and effect is given to their plain words; broker can rely upon deposit clause providing for funds to be maintained in escrow or until mutual agreement of the parties; ALJ does not consider uncharged claim of use of form contract with mutually inconsistent provisions; unlicensed name (addition of franchiser's name to the licensed name) violation mitigated by absence of harm to public; reprimand and discontinue use of licensed name or obtain licensure of franchisee name; corporate broker vicariously liable for acts of representative broker

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

38 DOS 94 Matter of DOS v. Scala - application to reopen hearing requires showing of meritorious defense; here affidavit filed established conduct of business under unlicensed trade names and does not show defense to use of unlicensed address; improper use of trade name prior to licensure; improper use of unlicensed address on listing agreements; uncharged misconduct of operating unlicensed corporation not considered; late affidavit considered "in the interests of justice"

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First quarter Legal Lines now available

The first quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers commission issues, a New York State Supreme Court ruling on unsigned letters not creating a contract, support animals and more. Learn more

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