34. Post-Hearing submissions

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

121 DOS 93 Matter of DOS v. Jacob - DOS fails to prove licensee knew, or failed to take reasonable steps to obtain knowledge regarding the illegality of rentals under the zoning ordinance; where broker is aware that particular area is zoned one-family, must make reasonable inquiry as to what use is being made of other floors; commission is unearned where rental is in fact illegal; ALJ rejects as incredible the broker's self -serving testimony that DSS did not want the commission returned; 2 representative brokers each fined the amount of the unearned commission ($750) for failing to return; ALJ rejects SAPA 301[1] claim of failure to hold a hearing within a reasonable time due to lack of demonstration of prejudice and refuses to consider an affidavit submitted by the licensee's counsel, as leave was not sought at the hearing to submit a response to the affidavit DOS was given permission to submit

9 DOS 94 Matter of DOS v. Shane - motion for pre-hearing discovery beyond SAPA 401(6) is denied; rules re:subpoenas in administrative proceedings reiterated; proper procedure of reserving right to file post-hearing memorandum of law; MLS form listing agreements are acceptable; individual license not sufficient to allow acting as representative of corporate licensee need affiliated license; agreements procured by individual acting under name of firm but without affiliated license are illegal and unenforceable - no brokerage fee can be claimed; misrepresentation and execution of unauthorized extension; misrepresentation of law (distinction between canceling agency authority and abiding contract rights); RPL §443 control the disclosures required of licensees; subsequently licensed corporation not vicariously liable; failure to provide copy of agreement 175.12; inadvertence considered in determining penalty

139 DOS 99 Matter of DOS v. Linchon - adjournment; collateral estoppel; post-hearing submissions; denial of request for adjournment to obtain counsel proper where prior adjournment granted and broker fails to adequately explain when and how he expected to obtain counsel; no prejudice to broker in denying requests for adjournment to obtain counsel where case was entirely documentary and broker granted time to retain counsel to submit post hearing legal argument; New Jersey decision to revoke broker’s license properly authenticated upon ample opportunity to review and read document and broker acknowledged it was authentic; broker collaterally estopped from disputing findings in New Jersey determination where he was afforded full and fair opportunity to litigate charges; broker lied on New Jersey application, cheated on New Jersey licensing examination and failed to supervise New Jersey office; license revoked

711 DOS 05 DOS v. All Island Estates Corp. - availing of license; duty to supervise sales associates; fraudulent practice; unlicensed activity; motion to dismiss at conclusion of DOS case; post hearing submissions; DOS charges corporate broker and representative brokers with unlicensed activity, availing of broker’s license to salesperson, employing and authorizing unlicensed persons to engage in regulated real estate activities and failing to properly supervise associated salespersons; broker’s motion to dismiss the proceeding on the close of complainant’s case for failure to prove the essential allegations of the complaint is dismissed and hearing continues; DOS fails to prove by substantial evidence the allegations made in the complaint; complaint dismissed.

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Fourth quarter Legal Lines now available

The fourth quarter 2019 edition of NYSAR’s Legal Lines is now available online at This edition covers new DOS proposed regulations, emotional support animals in housing, Landlord discrimination and more. Learn more