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36. Reopening/reconsideration

12 DOS 91 Matter of Entes - motion to reopen on ground of newly discovered evidence, denied

16 DOS 91 Matter of Rozenfeld - motion to reconsider based on newly discovered evidence, denied

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"

202 DOS 98 Matter of DOS v. Perlman -- stipulation; reopening; DOS and licensee stipulate to suspension of real estate broker’s license and notary commission until such time as final adjudication of disbarment from practice of law for professional misconduct or either party moves to reopen on notice

CRC #95-0539 Matter of DOS v. Siller, Consent Order -- representative broker and associate broker enter into consent order without admission of truth of charges in complaint and agree to pay restitution in the amount of $2,517

CRC #98-523 Matter of DOS v. Hazor, Consent Order - default decision (122 DOS 98) re-opened upon motion to vacate; license revocation for failure to disclose in renewal applications that corporate broker had been dissolved by proclamation and continued to operate for purposes other than winding up its corporate affairs is annulled; licenses reinstated upon payment of $2,000.00 fine

342 DOS 00 Arjun v. DOS - motion to reopen and for reconsideration; administrative tribunal has inherent authority to reconsider and to alter a prior decision or order rendered by the tribunal under CPLR §5015(a) for (i) excusable default, (ii) newly discovered evidence, (iii) fraud, misrepresentation or other misconduct of an adverse party, (iv) lack of jurisdiction or (v) reversal, modification or vacatur of a prior decision or order upon which the challenged decision or order is based; prior determination to deny application for license based in part because certificate of relief from disabilities was issued by New York City Criminal Court which was beyond the scope and power of the court is reopened for submission of evidence that certificate was actually issued by Supreme Court; evidence is not material as Supreme Court lacks jurisdiction to issue certificate from relief from disabilities which may only be issued, under the circumstances, by the State Board of Parole; motion to reopen and to reconsider is denied

_ DOS ___ Matter of DOS v. Cardenas - reopening; motion to reopen following broker’s failure to appear; suspension; upon request that matter be reopened, broker agrees to the suspension of his broker’s license pending a decision

518 DOS 02 DOS v. Moreno – material misstatement on application; reopening; matter reopened after salesperson requested an adjournment at initial hearing to obtain legal representation and thereafter failed to appear at rescheduled hearing at which decision was issued; material misstatement on application by failing to disclose two misdemeanor convictions; real estate salespersons license revoked

363 DOS 03 Matter of Franco – prior misconduct; reopening; request for reopening granted after default decision denying application for licensure as a salesperson where applicant advised that he had not received the original notice of hearing and had just learned of the default decision; direct relationship exists between charge of misconduct by corporate official for failing to collect taxes and license as a salesperson; risk sufficiently attenuated where crime was a single misdemeanor committed 16 years ago by applicant who was then only 23 years old, no evidence since conviction, including while managing 14 apartment houses which applicant owns, that he has acted unlawfully or otherwise improperly, application for license as a salesperson granted

510 DOS 05 Matter of Edwards - failure to appear at hearing; prior misconduct; re-opening; matter re-opened on request for new hearing based upon failure to receive notice of hearing; ex parte hearing may proceed upon proof of prior service; failure to appear twice after timely request for hearing deemed a withdrawal of the request for a hearing; proposed denial based upon felony convictions is final

541 DOS 05 DOS v. Capone - failure to appear at hearing; re-opening; prior misconduct; salesperson failed to timely execute and return settlement agreement, the offer of settlement was withdrawn and matter noticed for re-opening; salesperson was convicted of conspiring to collect extensions of credit by extortionate means, a federal felony; federal felony conviction, absent an executive pardon or certificate of good conduct or relief from disabilities, creates and absolute bar to licensure; salesperson’s license revoked

___ DOS _____ DOS v. Graney- suspension; re-opening; interim order suspending license pending completion of hearing; salesperson failed to appear at hearing; at default hearing, evidence was entered showing that salesperson wrongfully used stationary belonging to her former broker, thereby wrongfully holding herself out as still being associated with that broker, wrongfully retained money received from a client, and wrongfully failed to pay judgment; matter re-opened upon salesperson’s request; salesperson further requested adjournment for health reasons without indicating when she would be available for a hearing; salesperson’s license suspended pending hearing and determination as emergency action

146 DOS 06 DOS v. Razik- re-opening; cease and desist; matter re-opened in the interest of justice upon broker’s request; although notice had been properly served, there was no evidence that the original notice of hearing had been delivered; broker previously paid fines in settlement of two previous cease and desist violations; broker posts the cease and desist list on his computer server, holds regular staff meetings to emphasize the need to use the list to avoid improper solicitation, and previously dismissed a salesperson who failed to take the obligation seriously; salesperson sent three mailings to a home on the cease and desist list; representative broker may be held liable for the violations but may only be fined for those violations and his license cannot be suspended or revoked without a showing that he knew of the violations at the time of their occurrence or that he profited from them; no valid purpose would be served by penalizing broker for improper solicitations by his salesperson where broker has taken all reasonable steps to assure that salespersons abide by the law; complaint vacated

238 DOS 06 DOS v. Taylor- prior misconduct; re-opening; broker appealed prior decision revoking his license (859 DOS 05) upon grounds that he allegedly did not receive the notice of hearing; matter remanded for a new hearing; broker submitted at least one application for a license which contained a material misstatement regarding his record of criminal convictions and his social security number; broker convicted of Grand Larceny in the 4th degree, a class E felony; broker also charged with Grand Larceny in the 3rd degree arising out of his misuse of checks and debit card belonging to real estate brokerage firm; revocation of broker’s license restated

94 DOS 07 Matter of Singur- broker, reopening of hearing regarding license renewal in interests of justice; prior misconduct- 3 year suspension as attorney due to escrow account violations, acknowledgement of responsibility, credibility and character references; renewal granted

746 DOS 07 Matter of Rossi- order vacating revocation of broker license and notary public commission in interests of justice; default due to being out of the country; no DOS objection to reinstatement

38 DOS APP 09 Matter of Sarasky – failure to implement prior consent order; ALJ fine $1,500; appeal; request to reopen; medical evidence does not establish inability to request adjournment; failure to present agency disclosure form; failure to pay consent order does not establish public harm; application for extension of time to pay; only one violation sustained; $700 fine

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