35. Rejection of Entire Testimony

12 DOS 95 Matter of Morse - respondents' testimony which is inconsistent with documentary evidence is rejected in its entirety; salesperson failed to advise tenant of landlord's credit verification requests, causing them to lose half of their deposits; dual agency without informed consent not established, as licensee signature in space for landlord's was only intended to show who the broker was in the transaction; no failure to make escrow deposit where tenant knew money was to be delivered to landlord; failure of tenant's agent to advise of material information that in delivering deposit to landlord the tenant might lose money; use of unlicensed name; vicarious liability of broker for salesperson misconduct, broker may be fined even in absence of knowledge of salesperson's misconduct; restitution required of broker

81 DOS 98 Matter of DOS v. Sandberg - attorney; notary public; adjournments; attorney/broker’s breach of fiduciary duty to his law partners by failing to account to his law firm for certain legal fees received demonstrates untrustworthiness; conduct not arising out of attorney/broker’s activities as a real estate broker may serve as the basis for revocation of his license by establishing untrustworthiness; acts of misconduct establishing untrustworthiness form basis for revocation of notary public commission; attorney/broker’s license as a real estate broker and commission as notary public were granted by virtue of being an attorney and basis no longer exists where licensee is disbarred; real estate broker’s license and notary public commission revoked

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

542 DOS 05 DOS v. Sahadath – rejection of entire testimony; subpoenas; broker’s testimony stricken in prior matter where broker brought complaint against salesperson and failed to appear at adjourned date and was not subject to cross examination; broker failed to honor two subpoenas, one from DOS and one from respondent’s attorney; failure to honor subpoena results in dismissal of prior complaint broker himself filed; broker’s patent attempt to mislead the tribunal and his prior plea to a charge of the unauthorized practice of law by advising a client to file for bankruptcy and assisting her in doing so is considered; broker’s license suspended for two years

389 DOS 07 DOS v. Jenkins- salesperson renewal; failure to complete continuing education; testimony that licensee was unaware is not credible; personal difficulties not an excuse; 4 months suspension

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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