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9. Collateral estoppel

99 DOS 91 Matter of DOS v. Sorrentino - collateral estoppel to prior court adjudication of false oath

96 DOS 93 Matter of Ardelean - federal court decision is collateral estoppel re: housing discrimination (Open Housing Center tester); unlicensed activity by salesperson; failure to satisfy judgment without proof of inability to do so

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

83 DOS 95 Matter of DOS v. Loffredo - improper commission suit by broker; representative broker liable for forms used; unauthorized practice of law where sales agreement did not contain attorney's approval clause; collateral estoppel on issues of fact; pleadings amended to conform to the proof where no surprise or prejudice, and matters actually litigated; ready, willing and able purchaser not obtained when unable to obtain mortgage per sales agreement; release of listing agreement required where improperly procured

242 DOS 96, Matter of DOS v. Devaney - duty to public; fraud; amendment of pleadings to conform to proof; collateral estoppel; burden of proof; vicarious liability; consideration of prior pleading and disciplinary actions; publication of misleading advertisement violates fundamental duty to deal honestly with the public; DOS fails to meet its burden to amend the pleadings to conform to the proof to include charge of the unauthorized practice of law; tribunal may sua sponte amend the pleadings to conform to the proof where issue has been fully litigated and is closely related to the stated charges; licensee engaged in acts of fraud and in fraudulent practices by knowingly making false factual representations with the intent to deceive and resulting in reliance and acting thereon; adverse decision in ethics hearing at local board not given collateral estoppel where licensee requested and was denied adjournment to allow for legal representation; DOS has burden to prove by substantial evidence the truth of the allegations in the complaint; corporate broker is bound by the knowledge acquired and is responsible for the acts committed by its representative broker; prior plea of nolo contendere and payment of fine considered in determining imposition of penalty; corporate and representative brokers’ licenses suspended for a period of one year

268 DOS 96, Matter of Feliciano - renewal of license; DOS may require applicant for renewal of broker’s license to establish trustworthiness and competence; revocation of applicant’s license as an insurance broker for commingling and mismanaging funds reflects directly on trustworthiness and competence; insurance department’s findings areres judicata and may not be collaterally attacked; non-renewal is not to penalize the broker but rather to protect the public; application for renewal denied

240 DOS 97 Matter of DOS v. Embser - attorney; notary public; collateral estoppel and res judicata; attorney’s disbarment for breach of fiduciary duties to an estate and multiple violations involving trust funds warrants revocation of real estate broker’s license and notary public commission; evidence tendered to dispute findings of Appellate Division and disbarment is precluded by the principals of collateral estoppel and res judicata; signing checks using power of attorney after the death of the grantor of the power and failure to abide by various legal requirements warrants revocation of notary public commission

318 DOS 97 Matter of DOS v. McDermott - apartment information vendors; unlicensed activity; collateral estoppel; unlicensed operation of apartment information vendor business; steering; license as a real estate broker does not permit engaging in the business of apartment information vendor; broker acted in violation of consent order and declaratory ruling (92-43); broker engaged in conduct of racial steering; res judicata does not apply to consent judgment in the United States District Court, Eastern District of New York where primary relief sought by DOS (license revocation) was not available in prior action; collateral estoppel is not applicable for a consent judgment unless the underlying factual issues have been resolved; license revoked

237 DOS 98 Matter of DOS v. Harris -- due process; failure to appear at hearing; jurisdiction; vicarious liability; collateral estoppel; ex parte hearing may proceed upon proof of proper service; DOS retains jurisdiction of a licensee after expiration or surrender of a license where alleged acts occurred while broker was licensed and were within two-year automatic renewal period; refusal to refund unearned commission; broker is obligated to supervise brokerage activities of salespersons and is vicariously liable for the misconduct of its salespersons, limited only with regard to penalty in cases where the broker lacked actual knowledge of misconduct or did not retain any benefit derived from the misconduct; DOS estopped from complaining that broker commingled commissions as issue was determined in prior proceeding and found not have occurred; relicensure by broker or salesperson conditioned upon payment of $1,000 fine and proof that unearned commissions were refunded with interest

139 DOS 99 Matter of DOS v. Linchon - adjournment; collateral estoppel; denial of request for adjournment to obtain counsel proper where prior adjournment granted and broker fails to adequately explain when and how he expected to obtain counsel; no prejudice to broker in denying requests for adjournment to obtain counsel where case was entirely documentary and broker granted time to retain counsel to submit post hearing legal argument; New Jersey decision to revoke broker’s license properly authenticated upon ample opportunity to review and read document and broker acknowledged it was authentic; broker collaterally estopped from disputing findings in New Jersey determination where he was afforded full and fair opportunity to litigate charges; broker lied on New Jersey application, cheated on New Jersey licensing examination and failed to supervise New Jersey office; license revoked

141 DOS 99 Matter of DOS v. Swift - adjournment; DOS offers only evidence admitted; adjournment request denied after two prior adjournments granted; DOS, in determining fitness for licensure, may consider knowledgeable violations of law by and conduct of a licensee in capacities or in fields both related and unrelated to licensed activities; Supreme Court judgment has res judicata effect of the judgment and application of the doctrine of collateral estoppel; Martin Act violations occurred in area of public concern and relate to status as real estate broker; license revoked

159 DOS 99 Matter of DOS v. Regevick - collateral estoppel; broker collaterally estopped from disputing a Supreme Court order and judgment finding him responsible for violations of the Martin Act in the operation of a cooperative conversion; Supreme Court’s order to pay $8,000.00 restitution and issuing a permanent injunction enjoining broker from engaging or attempting to engage in any public promotion, offer, sale, distribution, exchange or transfer of real property pursuant to the Martin Act is sufficient imposition of punishment; reprimand

139 DOS 99 Matter of DOS v. Linchon - adjournment; collateral estoppel; post-hearing submissions; denial of request for adjournment to obtain counsel proper where prior adjournment granted and broker fails to adequately explain when and how he expected to obtain counsel; no prejudice to broker in denying requests for adjournment to obtain counsel where case was entirely documentary and broker granted time to retain counsel to submit post hearing legal argument; New Jersey decision to revoke broker’s license properly authenticated upon ample opportunity to review and read document and broker acknowledged it was authentic; broker collaterally estopped from disputing findings in New Jersey determination where he was afforded full and fair opportunity to litigate charges; broker lied on New Jersey application, cheated on New Jersey licensing examination and failed to supervise New Jersey office; license revoked

319 DOS 00 DOS v. Meslay - collateral estoppel; disclosure of agency relationships; failure to appear at hearing; exparte hearing may proceed upon proof of proper notice; broker failed to provide RPL §443 agency disclosure to prospective tenant at first substantive contact; judgment rendered in civil court is binding upon DOS tribunal; failure to pay judgment demonstrates untrustworthiness unless broker presents valid evidence of an inability to pay; broker’s license revoked

246 DOS 02 Matter of DOS v. Resilard - prior misconduct; collateral estoppel; unauthorized practice of law; Bankruptcy Court determination which was not appealed by respondent established he engaged in fraud, misrepresentation and the unauthorized practice of law; respondent is collaterally estopped from contesting the Bankruptcy Court determination; real estate broker’s license revoked

410 DOS 03 Matter of Quick – collateral estoppel; judgment; prior misconduct; fact that judgment in civil action was granted after applicant’s default does not mean that it does not have the effect of collateral estoppel; civil judgment was discharged in bankruptcy as applicant was financially unable to satisfy judgment; six and one half years have passed since entry of judgment; to deny applicant license at this late date and under these particular circumstances would in essence disqualify applicant from licensure for the foreseeable future, if not for life, which would be improper; application for license as a real estate broker granted

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