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38. Sanctions

64 DOS 93 Matter of Laffey - distribution of Penny Saver violates non-solicitation order; advertisements did not contain language limiting the areas in which free appraisals were offered; negligence is incompetency, not untrustworthiness; representative broker fails to supervise; pleading amended to conform to proof; each advertisement constitutes a separate and distinct violation

123 DOS 93 Matter of DOS v. Harrington - requests for adjournments must comply with 19 NYCRR §400.11; broker permits unlicensed salesperson to work; broker who fails to pay judgment without proof of inability is guilty of untrustworthiness, broker's failure to timely file termination of association notices not excused by claim of unhappiness with filing fee; prior discipline considered in imposing sanction; two-month suspension and continuing suspension until judgment is satisfied

1 DOS 94 Matter of ERA Faza Realty - DOS is not divested of jurisdiction by voluntary surrender of license or expiration of license if action occurred while licensed, while an applicant for a license, or while eligible to automatically renew per RPL §441(2); requirement of informed consent to dual agency; concealment, misrepresentation and failure in seeking to purchase for own account (2 transactions arranged - sale to licensee and resale at profit to customer, who was qualified for mortgage, but who seller was told had failed to qualify); disgorge profit and commission; fee not related to performance of legitimate service; representative broker must be corporate officer and is vicariously liable for wrongful act of associated salesperson under RPL §442-c; restitutionnot attributed to corporate broker where no proof that funds illegally obtained were collected by or in any way benefitted the corporation; DOS has no power to assess damages; representative broker not required to supervise another representative broker and not liable for misconduct of another representative broker who meets test of RPL §442-c; complaint dismissed as to other representative broker

13 DOS 95 Matter of Skydell - jurisdiction to adjudicate after expiration of license where eligible to renew; collateral estoppel as to fact findings by Division of Housing and Community Renewal; liability of broker for actions of partnership in which he was general partner irrespective of actual knowledge of wrongful acts; DOS not empowered to order restitution of illegal rent overcharges; failure to pay a fine may be challenged only in a subsequent disciplinary hearing; no direct liability for non-participation and un-involvement in corporate acts; no vicarious liability of corporate officers, directors or shareholders for wrongful acts of corporation; actual knowledge required for vicarious liability; broker presumed to know the law; failure to establish representative broker was directly responsible or vicariously liable for failure to disclose ownership interest in violation of 19 NYCRR §175.6; failure to deliver duplicate original of lease in violation of 19 NYCRR §175.12; retaining an unearned fee in violation of RPL §441-c; financial inability to pay judgments is good defense to charge of willful failure to satisfy judgment; efforts to meet obligations and refusal to file for bankruptcy demonstrate willingness to attempt to pay debts; pleading notconformed to change availing or failure of supervision, as these charges were not with in the broad composition of complaint and not actually litigated

15 DOS 95 Matter of Gafni - jurisdiction of DOS; deposit money continues to be property of prospective buyer until contract condition is achieved; unlawful retention is larceny; fraudulent practice of illegal retention of deposits, but no proof of criminal intent essential to prove fraud; failure of proof of retention of unlawful commission; vicarious liability of corporation for acts of representative broker; no authority to award damages; restitution with interest is required ($2,500; $3,000; $1,250 and $2,500)

50 DOS 95 Matter of Romano - relocation of principal business address without notice results in automatic suspension; illegal to demand and receive commissions while licensed salesperson; restitution of illegal commissions; failure to settle, so proper to impose higher fine

356 DOS 99 Matter of DOS v. Thomas - disclosure of agency relationships; failure to appear at hearing; sanctions;ex parte hearing is permissible upon proper notice; failure to provide RPL §443 agency disclosure to prospective tenant upon first substantive contact; failure to disclose broker’s family relationship with landlord; proper to impose fine higher than that which was asked for in settlement offer ($200.00); $500.00 fine

649 DOS 02 DOS v. Holzbach – disclosure of agency relationships; proper business practices; sanctions; unauthorized practice of law; vicarious liability; broker fails to timely provide agency disclosure form to buyer although disclosure form could have been faxed to and received from buyer; broker back dated agency disclosure form demonstrating incompetency; use of designated agent form without the use of required agency disclosure form pursuant to RPL §443(4); use of “removal of contingency” addendum to contract which did not contain an attorney approval clause and was not on a form jointly approved by the County Bar Association and REALTOR Association constituted the unauthorized practice of law; corporate broker liable for the acts of its representative broker; proper to impose a higher fine after hearing than that which was offered in settlement (joint fine of $2,000.00 offered); associate broker fined $2,000.00, representative broker fined $1,000.00, and corporate broker fined $2,000.00

912 DOS 02 DOS v. Clouden – proof of qualifying experience; material misstatement on application; sanctions; applicant failed to timely complete required continuing education requirement; applicant stated he had completed the required continuing education course believing the question to refer to the course he took prior to licensing, such answer demonstrated untrustworthiness; applicant offered opportunity to plead no contest and offered a fine of $500.00; applicant requested a hearing to object to the amount of the fine; salesperson fined $1,000.00

960 DOS 03 DOS v. Vazquez - deposits; unlicensed activity; duty to supervise sales associate; failure to cooperate with DOS investigation; failure to pay judgment; sanction; broker fails to reply to DOS’s request for information; broker allows two individuals to work in association with brokerage without being properly licensed; broker fails to pay judgment; broker fails to return rental deposits in two transactions where the rental was not consummated; broker fails to supervise sales associate and is accountable for monies received by salesperson and unaccounted for; in setting penalty, it is proper to consider licensees were found to have availed themselves of improper licensed real estate salespersons and to have retained an unearned commission; corporate broker’s license and representative broker’s license revoked and brokers ordered to pay restitution in the amount $7,725.00 and judgment in the amount $740.37

534 DOS 04 DOS v. Hanna - unlicensed activity; sanctions; salesperson conducted licensed activity under unlicensed corporation; salesperson rejected DOS’s offer to solve the matter by payment of a fine of $750.00; salesperson fined $1,000.00

852 DOS 05 DOS v. Duncan – disclosure of agency relationships; sanctions; broker failed to provide prospective buyer with an agency relationship disclosure form; broker was offered the opportunity to resolve the matter by paying a fine of $350.00 which he did not accept; where an offer of settlement has been refused it is proper to impose a higher fine where the broker has subsequently been found guilty; broker fined $500.00.

719 DOS 06 DOS v. Gabelli Realty LLC- duty to disclose agency relationships; settlements; at the time of taking a listing, broker had homeowner sign an agency relationship disclosure form on which the broker checked as the applicable relationship both that the broker was the seller’s agent and an agent of the buyer; broker did not give the homeowner copies of the disclosure documents at the time of signing but rather mailed them to the seller days later; broker was offered the opportunity to resolve the matter by paying a fine of $700.00 but refused the offer; thereafter, broker faxed an altered copy of the disclosure form to DOS’s investigator, having removed the check mark next to the language “an agent of the buyer/tenant;” thereafter, broker was offered an additional opportunity to resolve the matter by signing a consent order admitting the charges and paying a fine of $1,000.00; it is clear that broker was aware of the wrongfulness of his misconduct as demonstrated by his obvious attempt to mislead DOS by submitting to it an altered copy of the disclosure statement; broker fined $2,000.00

745 DOS 06 DOS v. Albarracin- disclosure of agency relationships; failure to appear at hearing; settlements; ex parte hearing may proceed upon proof of proper service; salesperson failed to provide agency disclosure form to either landlord or tenant when showing a one family house for rent to tenant; salesperson offered the opportunity to resolve the matter by paying a fine of $700.00 but refused; salesperson further provided the opportunity to resolve the matter by admitting to the allegations in the complaint and paying a fine of $1,000.00 and did not accept that offer; proper for tribunal to impose a fine higher than that which was asked for in the settlement offer; salesperson fined $2,000.00

954 DOS 06 Matter of Dia- proof of qualifying experience, false affidavit that completed continuing education course; in mitigation of penalty, but not an excuse for false answer, applicant had good faith belief that he was going to complete the course prior to renewal date and did not do so due to repeated postponements of course in the school and unavoidable family commitment

977 DOS 06 DOS v. Assaf- cease and desist, prior violation consent order; decline offer of another consent order; inadvertent violation and expression of regret, imposition of a fine is not appropriate

978 DOS 06 DOS v. Licht- cease and desist; failure to go forward with consent order; inadvertent violation and expression of regret; imposition of a fine is not appropriate

979 DOS 06 DOS v. Total Realty of Westchester- failure to comply with consent order, failure to timely post bond or undertaking; failure to satisfy judgment, respondent provided with three (3) months to arrange for release of funds deposited with court or make direct payment of judgment or license will be suspended

980 DOS 06 DOS v. Pomonis- proof of qualifying experience, failure to complete continuing education, false statement; mistaken belief that qualifying course meets continuing education requirements is not a mitigating factor, as course taken after application signed; subsequent completion of required course means revocation is not mandated, but does not excuse conduct, $1,000.00 fine

995 DOS 06 Matter of Tamburello – appraiser, continuing education, failure to appear, opportunity to settle, mistaken belief that courses were approved, correction of deficiency

1 DOS 07 Matter of Ali – appraiser allowing appraiser assistant to affix signature to report which he did not review, settlement offers declined, no fine authorized, 3-month suspension

3 DOS 07 Matter of Clark – failure to refund deposit, bad check, equivocal evidence on agency status and disclosures, untrustworthiness, restitution and $1,000 fine

6 DOS 07 Matter of Kent – cease-and-desist, previous business in Nassau Co., unaware of c&d list in Queens, reprimand

11 DOS 07 Matter of Saraceno – continuing education, inadvertent non-compliance, exigent circumstances, dismissal

13 DOS 07 Matter of Brannen [supersedes 538 DOS 06]– appraiser assistant, continuing education, non-malicious, false statement, 3-month suspension

15 DOS 07 Matter of Bittan—appraiser assistant, continuing education, false statement, revocation

20 DOS 07 Matter of Bronx County Realty Corp. – failure to satisfy judgment; failure to cooperate; restitution and $2,000 fine

21 DOS 07 Matter of Geoghan – appraiser, continuing education, inadvertent violation, opportunity to settle, no authority to impose fine, reprimand

22 DOS 07 Matter of Marshall – appraiser, continuing education, inadvertent violation, opportunity to settle, no authority to impose fine, reprimand

24 DOS 07 Matter of Sergio – appraiser, continuing education, no reasonable explanation of failure to take course as soon as learned of requirement, 2-month suspension

34 DOS 07 Matter of Alberti- Appraisers- supervisory appraiser approves reports that violate USPAP standards; incompetence; failure to cooperate; revocation

87 DOS 07 DOS v. Clarke- Appraisers, appraisal assistant, false statement regarding continuing education; mitigating factors of spinal surgery and serious financial hardship, two months suspension

123 DOS 07 Matter of Sergio- Appraiser, appraiser assistant, motion to reconsider penalty in light of totality of respondent’s conduct and effect of suspension upon ability to support family; mistake as to timing of continuing education course; proof of completion of course; suspension vacated; reprimand

135 DOS 07 Matter of Kaleck- broker misconduct, untimely request for adjournment (19 NYCRR §400.11); false advertising of Century 21 Franchisee; after injunction; misrepresentation; refused to release principal from listing agreement; failure to keep appointment and misstated that home off the market; suit for unearned commission; failure to cooperate in investigation; failure to pay judgment without proof of inability to do so; predatory conduct; revocation

296 DOS 07 Matter of Artemiou- appraiser assistant; failure to complete continuing education, false affirmation; revocation

326 DOS 07 Matter of Martin- general appraiser; failure to complete continuing education, false affirmation, disregard of offer to resolve; revocation

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

580 DOS 07 Matter of Herzog- broker fails to comply with terms of consent order (failure to pay fine and restitution); license revoked

1063 DOS 07 Matter of Antiaobong- Appraiser Assistant; incompetency; substantial error; revocation

1163 DOS 07 Matter of Posa- Broker; fraudulent advertisement; false statement on renewal; failure to reveal revocation of insurance license; false advertisement stating a NYS broker is associated with ads without broker consent; fraudulent inducement to make deposits; failure to refund deposits; failure to pay judgment; commingling funds; untrustworthy action as insurance broker; tends to establish unfitness; revocation and requirement to pay judgment if ever reapplies for real estate license

1117 DOS 07 Matter of Norris- Appraiser; inaccurate and misleading report; gross overstatement of value; misleading due to negligence (attempt to justify supposed market trend), not intent to deceive; three months suspension

1955 DOS 07 Matter of Hannays- broker applicant; improper rental practices (security deposit, escrow account, commission); unlicensed name; dishonesty; fraud and misrepresentation with intent to injure; commingling funds; escrow account violation 19 NYCRR 195.1; credible respondent testimony re: lack of good faith by complainant; unlicensed brokerage activity; must refund $1,600 deposit and pay fine of $1,000 before consideration of application for brokerage license

1971 DOS 07 Matter of Vaccaro- appraiser; continuing education; opportunity to resolve by paying fine; timing problems re: courses; two months suspension

1977 DOS 07 Matter of Murphy- appraiser; continuing education; inadvertent misunderstanding of qualifying courses; complaint dismissed

1979 DOS 07 Matter of Fierro- appraiser; continuing education; failure to respond to audit letter, despite having taken courses; reprimand for violation of 19 NYCRR §1107.3(a)

2028 DOS 07 Matter of Fletcher- appraiser assistant; criminal conviction (sexual abuse 1st- D Felony), acceptance of responsibility; slim likelihood of recurrence; license granted

2039 DOS 07 Matter of Allstadt- appraiser; continuing education; misinterpretation of type of course which qualifies for CE; suspension until provide proof of 14 additional hours within 2 months or suspension until provides proof of compliance

2095 DOS 07 Matter of Lettieri- salesperson; continuing education; opportunity to settle; $1,000 fine or 3 month suspension

2060 DOS 07 Matter of Loiola- appraiser; continuing education; adequate time to reobtain stolen records; suspension until completes balance of 11 hours

2083 DOS 07 Matter of Kantor- salesperson; continuing education; mitigation (cancer and hardship); reprimand

2100 DOS 07 Matter of Wait- appraiser; continuing education; out of state courses; mitigation (single parent, hardship); order to complete 28 hours by 1/15/08; suspension until thereafter completed

2135 DOS 07 Matter of Gonzalez- appraiser assistant; continuing education; timing problem with courses; 2 month suspension

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