661 DOS 09
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Complainant, DECISION
-against-
ROBIN DEMMO, PETER SCHNEEBERG, and
GABELLI REALTY LLC,
Respondents.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on June 4, 2009 at the office of the Department of State located at 123 William Street, New York, New York.
The respondents did not appear.
The complainant was represented by David Mossberg, Esq.
COMPLAINT
The complaint alleges that: Robin Demmo wrongfully received a commission directly from a client and operated as a Real Estate Salesperson although her license had expired; Peter Schneeberg and Gabelli Realty LLC (hereinafter “Gabelli”) permitted Ms. Demmo to act as a Real Estate Salesperson without a license; all of the respondents failed to satisfy a lawfully obtained judgement; and all of the respondent’s failed to cooperate with the complainant’s investigation.
FINDINGS OF FACT
1) Notices of hearing together with copies of the complaint were served by certified and regular mail addressed to the respondents at their last known business address and at their residential addresses and posted on April 16, 2009. The certified mailings to the business address were all returned marked “unclaimed,” as was the certified mailing to Mr. Schneeberg’s residence. The regular mailings to Mr. Schneeberg, and to Ms. Demmo at her business address, were not returned. The mailing to Ms. Demmo’s residence address were returned marked “attempted not known” and “Ann” (State’s Ex. 1 and 2).
2) Peter J. Schneeberg is duly licensed as representative Real Estate Broker for Gabelli. Robin A. Demmo was licensed as a Real Estate Salesperson in association with Gabelli from September 25, 2006 to September 25, 2008, when her license expired (State’s Ex. 3).
3) In the Autumn of 2008 Jose Quintana was seeking to rent an apartment. Ms. Demmo showed him three available apartments, including one at 6102 Menahan Street in Queens for which he signed a lease, and on November 18, 2008 he gave her $1,250.00 cash as a commission (State’s Ex. 4) and a check payable to the landlady for rent and security. However, the next day he received a telephone call from the landlady telling him that the deal was off because the rent and security check was in the wrong amount. Mr. Quintana immediately telephoned Ms. Demmo and asked for his money back, but she refused, saying that she had already given half of the commission to Mr. Schneeberg and had spent her half.
4) Mr. Quintana sued Gabelli and Ms. Demmo in Civil Court, Kings Count, Small Claims Part, and on January 5, 2009 was awarded a default judgement in the amount of $1,570.00 (State’s Ex. 5). He then made numerous unsuccessful attempts to contact the respondents by telephone and went to their office only to find that it was closed. The judgement has not been satisfied.
5) Mr. Quintana filed a complaint with the complainant, and in the course of her investigation of that complaint Investigator Tamara Coleman spoke with Mr. Schneeberg on the telephone. She also left letters at Mr. Schneeberg’s office and at Ms. Demmo’s residence in which she asked them to contact her to confirm that the judgement has been either vacated or satisfied (State’s Ex. 6). Mr. Schneeberg replied by telephone and told her that she should get in touch with Ms. Demmo. Ms. Demmo did not reply.
OPINION AND CONCLUSIONS OF LAW
I- The holding of an ex parte quasi-judicial administrative hearing was permissible, inasmuch as there is evidence that notice of the place, time and purpose of the hearing was properly served. Patterson v Department of State, 36 AD2d 616, 312 NYS2d 300 (1970);Roy Staley v Division of Licensing Services, 14 DOS App 01; Matter of the Application of Rose Ann Weis, 118 DOS 93.
II- The expiration of Ms. Demmo’s license does not deprive the Tribunal of jurisdiction inasmuch as she may renew her license by merely submitting an application anytime before September 25, 2010. Albert Mendel & Sons, Inc. v N.Y. State Department of Agriculture and Markets, 90 AD2d 567, 455 NYS2d 867 (1982); Main Sugar of Montezuma, Inc. v Wickham, 37 AD2d 381, 325 NYS2d 858 (1971).
III- Being an artificial entity created by law, Gabelli can only act through it officers, agents, and employees, and it is, therefore, bound by the knowledge acquired by, and is responsible for the acts committed by, its representative broker, Mr. Schneeberg, within the actual or apparent scope of his authority. Roberts Real Estate, Inc. v Department of State, 80 NY2d 116, 589 NYS2d 392 (1992); A-1 Realty Corporation v State Division of Human Rights, 35 A.D.2d 843, 318 N.Y.S.2d 120 (1970); Division of Licensing Services v First Atlantic Realty Inc., 64 DOS 88; RPL § 442-c.
IV- Ms. Demmo is charged with being compensated directly by Mr. Quintana in violation of Real Property Law (RPL) §442-a. While the evidence establishes that she received a cash payment from him, it also establishes that she gave a portion of the money to Mr. Schneeberg, who until the expiration of her license had been her Broker. I take official notice that it is the normal practice for commissions to be accepted by Salespersons on behalf of the Broker with whom they are associated. I find, therefore, that the acceptance of the commission by Ms. Demmo was not, under these specific circumstances, improper.
V- Pursuant to RPL §440-a it is unlawful to act as a Real Estate Salesperson without being so licensed. By engaging in a rental transaction wit Mr. Quintana after her license had expired Ms. Demmo violated that statute and demonstrated untrustworthiness and incompetency, and by allowing her to do so the respondents also demonstrated incompetency and untrustworthiness.
VI- The respondents have failed to satisfy the judgement obtained by Mr. Quintana and have offered no explanation or excuse therefore. They have, therefore, further demonstrated untrustworthiness. Department of State v Feldman, 113 DOS 80, conf'd. sub nom Feldman v Department of State, 81 AD2d 553, 440 NYS2d 541 (1981); Division of Licensing Services v Shulkin, 40 DOS 90; Division of Licensing Services v Janus, 33 DOS 89." Division of Licensing Services v Harrington, 123 DOS 93 at 4. It should be noted that since Ms. Demmo was unlicensed at the time of the transaction for which the commission was paid the respondents would not be entitled to retain that commission even in the absence of a judgement.
VII- RPL §442-e[5] states:
"The secretary of state shall have the power to enforce the provisions of this article and upon complaint of any person, or on his own initiative, to investigate any violation thereof or to investigate the business, business practices and business methods of any person, firm or corporation applying for or holding a license as a real estate broker or salesman, if in the opinion of the secretary of state such investigation is warranted. Each such applicant or licensee shall be obliged, on request of the secretary of state, to supply such information as may be required concerning his or its business, business practices or business methods, or proposed business practices or methods."
Pursuant to RPL §442-j the Secretary of State has the authority to delegate to employees of the Department of State the above powers to compel a licensee to supply information. Ms. Demmo failed to respond to the letter of the complainant’s Investigator. She thereby failed to cooperate with the complainant’s investigation and further demonstrated untrustworthiness. Mr. Schneeberg responded, but only to tell the Investigator to contact Ms. Demmo. His incomplete cooperation was also a demonstration of untrustworthiness.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Robin Demmo has violated Real Property Law §442-a and has demonstrated untrustworthiness and incompetency, and accordingly, pursuant to Real Property Law §441-c, should she ever apply for a license as a Real Estate Salesperson or Broker no action shall be taken on such application until she has paid a fine of $2,000.00 to the Department of State and has submitted proof satisfactory to the Department of State that the judgement obtained by Jose Quintana in Civil Court, Kings County, Index #20264/08, has been satisfied in full, and
IT IS FURTHER DETERMINED THAT Peter Schneeberg and Gabelli Realty LLC have demonstrated untrustworthiness and incompetency, and accordingly, they shall pay a fine of $2,000.00 to the Department of State on or before July 15, 2009, and should they fail to pay the fine their license as a Real Estate Broker shall be suspended for a period commencing on July 16, 2009 and terminating two months after the receipt by the Department of State of their license certificates and pocket cards, and their license shall be further suspended effective July 16, 2009 until they have submitted proof satisfactory to the Department of State that the judgement obtained by Jose Quintana in Civil Court, Kings County, Index #20264/08, has been satisfied in full. They are directed to send a certified check or money order for the fine payable to “Secretary of State” and proof of full satisfaction of the judgement, or their license certificate and pocket card, to Norma Rosario, Department of State, Division of Licensing Services, P.O. Box 22001, Albany, New York 12201-2201.
Roger Schneier
Administrative Law Judge
Dated: June 16, 2009