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48. Suspension

17 DOS 90 Amended (50 DOS 94) Matter of DOS v. Donati - licensee may be required to pay interest on restitution; surrender of license which is accepted by DOS while appeal pending is deemed to satisfy period of suspension; on remand, may not raise new arguments not raised in Article 78 proceeding

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

__ 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

925 DOS 03 Matter of Kennedy - DOS fails its burden of proof; material misstatement on application; suspension; DOS fails to prove that applicant made material misstatement on application by answering “no” to the question regarding revocations and denials of licenses (not about suspensions) where applicant had previously had a salespersons license suspended (721 DOS 02); DOS failed to prove that prior decision was served upon applicant; application for renewal of salespersons license granted, subject to the terms of the continuing suspension of the license pursuant to prior DOS matter as prior decision is now served upon applicant

___ 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

485 DOS 06 Matter of Golding- material misstatement on application; failure to comply with terms an administrative determination suspending previously held license; broker’s license suspended in prior decision (1130 DOS 03) for depositing client’s check in his general operating account and converting such funds to his own use; broker’s license previously suspended for one year and until he presents proof that he refunded the converted deposit plus interest; broker still has not paid any of the converted deposit, and answered “no” on his license renewal application that any license had been revoked, suspended or denied by any state agency; condition under prior order is still reasonable as applicant should not have commingled funds and converted same; applicant made a material misstatement on his application by failure to disclose his prior suspension; application for real estate brokers license denied

1009 DOS 06 Matter of Younge – salesperson managed real estate and collected rents without broker knowledge (RPL §440[3]), request for or on behalf of broker, failure to account, restitution, 6-month suspension

1021 DOS 06 Matter of Godard – fraudulent practices, altered check, unlicensed corporation, restitution, 6-month suspension

329 DOS 08 Matter of Volcy – salesperson renewal; continuing education; rejected opportunity to pay fine; suspension until submit proof of CE

352 DOS 08 Matter of Urciuoli – salesperson, material misstatements in renewal application; license suspension and child support arrears; revocation

91 DOS 09 Matter of ERA Big Apple REALTORS – broker; predatory lending transaction; undisclosed dual agency; breach of fiduciary duties; pressured to pay fee to mortgage broker; revocation of agent; 3-month suspension of broker

414 DOS 09 Matter of Ogiamien – salesperson; CE; misunderstanding; 7-month suspension

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