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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Third quarter Legal Lines now available

The third quarter 2018 edition of NYSAR’s Legal Lines is now available online at This edition covers what a broker's agent actually is, the legal issues related to social media use, conditional approval for financing is not a mortgage commitment and more. Learn more