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36A. Res Judicata

6 DOS APP. 01 (590 DOS 00) Matter of DOS v. Fletcher - disclosure of agency relationships; res judicata; broker prevails in civil action over client for earning commission of $500.00 and locating an apartment for client; broker fails to provide RPL §443 agency disclosure form in said transaction and is, after hearing, fined $100.00; DOS is precluded from re-litigating commission issue by doctrine of res judicata which applies in administrative proceedings when the same thing was decided earlier by a court of law; ALJ’s refusal to order broker to reimburse client the commission is affirmed

232 DOS 02 DOS v. Liberty Auction Properties, Ltd. - deposits; vicarious liability; res judicata; a judgment rendered in a civil action is not controlling over administrative hearing where actions seek different remedies, neither DOS nor the complaining witness in the administrative proceeding was a party to the civil suit, and the issues litigated in the administrative proceeding were not litigated in the civil action; broker failed to return deposit to buyer after buyer failed to complete sale for good cause and seller’s attorney directed broker to return deposit; seller’s subsequent claim for deposit as liquidated damages litigated in civil action by seller against broker for deposit; broker obtains judgment for deposit pursuant to terms of listing agreement entitling broker to retain deposit upon buyer default where the down payment did not exceed the amount of the commission; broker received deposit in the capacity of a stakeholder and deposit funds remained the property of the buyer upon mutual termination of the transaction by the parties and neither seller nor broker became entitled to the deposit; corporate real estate broker responsible for the cognitional acts of its representative real estate broker; broker to refund $25,000 deposit to buyer and pay $1,000 fine

380 DOS 03 Donati v. DOS – prior misconduct; reconsideration; res judicata; applicant’s prior license as a real estate broker was suspended by administrative decision (50 DOS 94) requiring respondent to pay restitution as a condition of consideration of any application by the applicant for a license under Article 12-A; prior administrative decision is binding both upon the applicant and the tribunal; tribunal must consider, however, whether under current circumstances, the continued imposition of the condition is unreasonable; applicant is 62 years of age, has been divested of all property, faces destitution and seeks to work as a salesperson under the direction and supervision of a broker; applicant admits the unlawful acts, expresses remorse and states that under the current circumstances, the prior decision is a “life sentence;” under the current circumstances, the continued imposition of the prior decision is unreasonable; application for real estate salesperson license granted

185 DOS 05 DOS v. Britt - disclosure of conditions affecting the value or desirability of listed premises; DOS fails its burden of proof; res judicata; judgment rendered in civil court between buyer and seller is not controlling in administrative proceeding against licensee where DOS and licensee were not parties in the civil suit and professional conduct of the licensee was not litigated; duty of disclosure to a buyer by a seller’s agent is derivative; seller’s agent must make the same disclosure to a buyer that the law requires a seller to make; disclosure by seller’s agent to buyer’s agent of the condition of the property as known by seller’s agent was timely, proper and essentially a disclosure to buyer of that information; DOS has failed to prove by substantial evidence its allegation that basement flooding was a common occurrence or that broker was fully aware that homes in the neighborhood where the property is located encountered frequent flooding; complaint dismissed

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