734 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-
RIVKA HAMMER, CENTURY 21 PETREY
EAST CT BARTKO REALTY INC.
STEVE OCHS, and VICKY BARTKO,
Respondent.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on July 9, 2009 at the office of the Department of State located at 123 William Street, New York, New York.
Respondent Hammer, the only remaining respondent after the charges against respondent Ochs were withdrawn and the other respondent’s entered into a settlement, did not appear.
The complainant was represented by David Mossberg, Esq.
COMPLAINT
The complaint alleges that Ms. Hammer submitted a listing to the Multiple Listing Service (MLS) that contained fraudulent information and misled the eventual buyer with regards to the ownership, nature, legal status of, and taxes on the property.
FINDINGS OF FACT
1) Notice of hearing together with a copy of the complaint was served by certified mail addressed to the respondent at her last known place of business and delivered on January 15, 2009. A subsequent notice of adjournment was sent to the respondent at the same address on April 30, 2009, and, I take official notice, has not been returned by the Postal Service (State’s Ex. 1).
2) From July 1, 2005 to May 17, 2006 and from February 27, 2007 until November 29, 2007, when her association was terminated, the respondent was duly licensed as an Associate Real Estate Broker in association with Century 21 Petrey East CT Bartko Realty Inc. (hereinafter “Century 21"). She remained licensed but un-associated until her license expired on February 27, 2009 (State’s Ex. 2).
3) On November 14, 2005 the respondent, acting on behalf of Century 21, entered into a listing agreement for the sale of real property located at 63 E. Penn St., Long Beach, New York. The listing indicated that the property was owned by Rose Reichman, the respondent’s mother, was classified as one family residential, and that the real estate taxes were $9,400.00 per year (State’s Ex. 4). The respondent submitted that information to the Long Island MLS, which published it (State’s Ex. 5).
4) The respondent was notified on December 29, 2005 that the property had been re-classified as commercial (Class 4) and was being re-assessed (State’s Ex. 11).
5) The recent title history of the property is as follows: On October 8 of a year not stated on the deed title to the property was transferred by David Reichman, Rose Reichman, and the respondent to Rose Reichman; on May 19, 2005 title to the property was transferred by Rose Reichman to the respondent (State’s Ex. 12).
6) The house had been classified as a single family residence, but on March 2, 2005 Ms. Reichman was granted a “Special Permit” allowing it to be used as a two family residence “while Rose Reichman resides in and owns said premises,” The permit further provided “(i)f these conditions are not complied with, this Special Permit is deemed revoked and reverts back to a one family dwelling” (State’s Ex. 6).
7) On May 18, 2006 Douglas and Katherine di Monda,, who had dealt with the respondent and to whom she had given conflicting information about the ownership of the house, entered into a contract to purchase the house for $980,000.00 (State’s Ex. 7). It was at that time that the di Mondas conclusively learned that the respondent was the owner.
8) A closing of title took place on August 29, 2006, at which time the respondent deeded the property to the di Mondas (State’s Ex. 8).
9) The respondent never advised the di Mondas of the terms of the Special Permit, of the re-classification, or of the re-assessment which, according to Nassau County Department of Assessment’s notice of December 29, 2005, would available for inspection on the tentative assessment roll on January 2, 2006 (State’s Ex. 11).
10) A month after the closing the di Mondas received a tax bill from the Town of Hempstead advising them that the property had been classified commercial and that their annual taxes were $30,000.00 (State’s Ex. 3). Then, on December 6, 2006, they were notified by the City of Long Beach that violations had been placed on the property (State’s Ex. 10), apparently because of the continued configuration of the property as a multi-family residence after it had been vacated by Ms. Reichman.
11) In the course of his investigation of a complaint about the transaction which had been filed with the complainant by Ms. di Monda Senior License Investigator Steven J. Wakely interviewed the respondent, who refused to answer his questions.
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 the respondent’s license does not deprive this Tribunal of jurisdiction over conduct which occurred while she was licensed, particularly during the two year period after the expiration during which she can renew her license by merely submitted an application and the statutory fee. 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- A Real Estate Broker is obliged to act at all times in an open, honest, and above board manner. By listing her mother as the owner of the subject property, not advising the di Modas of the change in the taxes, and failing to advise the di Mondas of the re-classification of the property as commercial, the respondent misled the di Mondas with the result that they incurred expenses substantially in excess of what they had bargained for. The respondent’s conduct was a demonstration of gross untrustworthiness and amounted to fraudulent practices, which "...as used in relation to the regulation of commercial activity, is often broadly construed, but has generally been interpreted to include those acts which may be characterized as dishonest and misleading. Since the purpose of such restrictions on commercial activity is to afford the consuming public expanded protection from deceptive and misleading fraud, the application is ordinarily not limited to instances of intentional fraud in the traditional sense. Therefore, proof of an intent to defraud is not essential." Allstate Ins. Co. v Foschio, 93 A.D.2d 328, 464 N.Y.S.2d 44, 46-47 (1983) (citations omitted). A single fraudulent practice may be the basis for the imposition of disciplinary sanctions. Division of Licensing Services v Linfoot, 60 DOS 88, conf'd. sub nom Harvey v Shaffer, 156 A.D.2d 1013, 549 N.Y.S.2d 296 (1989).
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Rivka Hammer has demonstrated untrustworthiness and has engaged in fraudulent practices, and accordingly, pursuant to Real Property Law §441-c, her license as an Associate Real Estate Broker is deemed revoked effective immediately.
Roger Schneier
Administrative Law Judge
Dated: July 10, 2009