1) The respondent is duly licensed under the name Gayman J. Hillaire as an individual broker with a term expiration of September 15, 2010. His business address is 5608 Church Avenue, Brooklyn, NY 11203 (State’s Ex. 2).

            2 ) The respondent is licensed under the name “Gayman J. Hillaire.” His business card advertises his business as “Hillaire Real Estate”, and refers to him as “Mr. Hillaire - Licensed Broker” (State’s Ex. 7).

            3) In July or August of 2007, Nafessa Spence, a salesperson employed by the respondent, showed Ms. Sonia Yorke an apartment at 454 East 95^th Street, Brooklyn, New York.

            4) Ms. Yorke gave Ms. Spence $1000.00 on December 6, 2007, and another $100.00 on December 8, 2007, and received receipts on those occasions (State’s Ex. 4). Ms. Spence turned the money over to the respondent, who deposited the money into his operating account at Citibank.

            5) The respondent represented to Ms. Yorke that her money would be returned to her when he received payment from New York City’s Human Resources Administration (hereinafter “HRA”). On February 1, 2008, HRA gave the respondent three checks in the amount of $940.00 each, designated as first month’s rent, security deposit and a broker’s fee. One check was issued to the respondent, and two were issued to Ms. Yorke’s landlord, Dawn Riley.

            6) In an unsworn statement provided to DLS Investigator Laurence Magaram, the respondent stated that after he received the checks from HRA, he returned $650.00 to Ms. Yorke, and gave the remaining $450.00 to Ms. Riley, toward Ms. Yorke’s first month’s rent (State’s Ex. 8). In a interview with Investigator Magaram, Ms. Yorke denied receiving any money from the respondent. In an unsworn letter, Ms. Riley denied receiving any money from the respondent (State’s Ex. 13).

            7) The respondent submitted an unsworn letter dated March 10, 2008, that purports to be signed by Ms. Yorke, and states that she received a $480.00 refund from the respondent. Attached to the letter is a receipt for a separate $620.00, purportedly signed by Ms. Yorke (State’s Ex. 14). The respondent also submitted a notarized letter, on his letterhead and dated February 2, 2008, that purports to be from Ms. Yorke (State’s Ex. 16). The letter is essentially an apology that states a refund was, indeed, received by Ms. Yorke from Mr. Hillaire.

            8) By a notarized letter dated February 11, 2008, and faxed to the investigator, Ms. York denies receiving money or signing the February 2, 2008 letter submitted by the respondent (State’s Ex. 6). By unsworn letter dated May 12, 2008, Ms. Yorke denies signing any of the documents that acknowledged payment, and states her belief that the documents were forged by someone in Mr. Hillaire’s office (State’s Ex. 15).

            9) The signatures on the documents submitted by Ms. Yorke and the respondent are very similar.

            10) After several requests, the respondent provided the investigator with a receipt book that includes what purports to be a copy Ms. Yorke’s receipt. The copy, which is completely illegible, is also inexplicably surrounded by other receipts with various dates in July of 2004. The respondent explained to the investigator that the cardboard was placed improperly in the receipt book, causing problems with the copy.

            11) Ms. Yorke informed Investigator Magaram that she did not receive an agency disclosure agreement. Mr. Hillaire was unable to produce a disclosure agreement signed by Ms. Yorke.

            12) Ultimately, Ms. Yorke did not move into the apartment because it was in disrepair.

                                    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 (3^rd Dept. 1970); Roy Staley v. Division of Licensing Services, 14 DOS App 01; Matter of the Application of Rose Ann Weis, 118 DOS 93; see also, Verdell v. DeBuono, 262 AD2d 812, 691 NYS2d 679 (3^rd Dept. 1999); Jacoby v. New York State Board for Professional Medical Conduct, 295 AD2d 655, 743 NYS2d 192 (3^rd Dept. 2002).

            II- As the party which initiated the hearing, the burden is on the complainant to prove, by substantial evidence, the truth of the charges set forth in the complaint. State Administrative Procedure Act §306(1). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact... More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt (citations omitted).” 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 NY2d 176, 408 NYS2d 54, 56-57 (1978); Tutuianu v. New York State, 22 AD3d 503, 802 NYS2d 465 (2^nd Dept. 2005). “The question...is whether a ‘conclusion or ultimate fact may be extracted reasonably--probatively and logically’” City of Utica Board of Water Supply v. New York State Health Department, 96 AD2d 719, 465 NYS2d 365, 366 (1983), quoting 300 Gramatan Avenue Associates, supra, 408 NYS2d at 57.

            III- Pursuant to 19 NYCRR 175, a real estate broker must maintain an escrow account into which he or she must deposit any money belonging to his or her principal which comes into his or her possession. By depositing Ms. Yorke’s money into his operating account, the respondent violated this provision, thereby demonstrated untrustworthiness and incompetency.

            IV- Pursuant to Real Property Law §443, a real estate broker is required to provide a prospective buyer or tenant of real property with an agency relationship disclosure form in a statutorily mandated format and containing statutorily mandated information. By failing to provide Ms. Yorke with an agency disclosure form, the respondent violated that statute and demonstrated untrustworthiness and incompetence.

            V- Where a broker or salesperson has received or retained money to which he is not entitled, he may be required to return it, together with interest, as a condition of retention of his license. Donati v Shaffer, 83 NY2d 828, 611 NYS2d 495 (1994); Kostika v Cuomo, 41 N.Y.2d 673, 394 N.Y.S.2d 862 (1977); Zelik v Secretary of State, 168 AD2d 215, 562 NYS2d 101 (1990); Edelstein v Department of State, 16 A.D.2d 764, 227 N.Y.S.2d 987 (1962). By substantial evidence, the complainant has shown that the respondent did not return $480.00 out of Ms. Yorke’s $1100.00 deposit. By the respondent’s own inconsistent admissions, he gave, at most, $650.00 to Ms. Yorke, while giving the remainder to her landlord. In determining the amount owed Ms. Yorke, the tribunal will credit the receipt the respondent submitted to the investigator, reflecting only $620.00 was returned to Ms. Yorke. While the complainant alleged that the respondent failed to pay the entire $1100.00, that allegation was not proven by substantial evidence. Evidence submitted by the respondent directly contradicted Ms. Yorke’s accusations. Furthermore, Ms. Yorke was not present to testify under oath, and the tribunal was unable to assess her credibility. By his failure to return Ms. Yorke’s full deposit, the respondent demonstrated untrustworthiness and incompetence.

            VI- Pursuant to Real Property Law §440-a, no person or corporation may engage in the business of real estate brokerage without being licensed to do so. A real estate broker who or which wishes to conduct brokerage business under a name other than that on his/her/its license must apply for a license under that new name. Real Property Law §441(1)(a); Division of Licensing Services v. Dorfman, 112 DOS 99 (1999). By advertising as other than “Gayman J. Hillaire,” the respondent violated this statute.

            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. The respondent allowed the complainant’s investigator to interview him on multiple occasions. Although it took several requests, and some of the documents are questionable as to their authenticity and integrity, the respondent was in substantial compliance with the Department of State’s directive to cooperate with the investigation. Therefore, this charge must be dismissed.

            DETERMINATION

            WHEREFORE, IT IS HEREBY DETERMINED THAT respondent Gayman J. Hillaire, UID# 35HI0740551, has violated Real Property Law §§440-a, 443, and 19 NYCRR 175.1, and demonstrated untrustworthiness and incompetence in violation of Real Property Law §441-c. Accordingly, pursuant to Real Property Law §441-c, he shall pay a fine of $1000.00 to the Department of State on or before June 22, 2009, and should he fail to pay the fine, then his license as a real estate broker shall be suspended for a period commencing on June 23, 2009 and terminating two months after the receipt by the complainant of his license certificate and pocket card. Upon payment of the fine or termination of the suspensions in lieu thereof, his license shall be further suspended until he shall submit proof satisfactory to the Department of State that he has refunded the sum of $480.00, together with interest at the legal rate for judgements (currently 9%) from February 2, 2008, to Ms. Sonia Yorke. The respondent is directed to send his fine or license certificate and pocket card, by certified mail, to Norma Rosario, Customer Service Unit, Department of State, Division of Licensing Services, Alfred E. Smith Building, 80 South Swan Street, 10th Floor, Albany, NY 12201.

                                                                                    Ziedah F. Giovanni                                                                  Administrative Law Judge

Dated: May 22, 2009