431 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-
LOUIS M. NUNZIATA,
Respondent.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on April 29, 2009 at the office of the Department of State located at 123 William Street, New York, New York.
The respondent did not appear.
The complainant was represented by Senior Attorney John Kenny, Esq.
COMPLAINT
The complaint alleges that the respondent Real Estate Broker submitted five license applications on which he wrongfully stated that he is under no obligation to pay child support.
FINDINGS OF FACT
1) Notice of hearing calendared for April 1, 2009, together with a copy of the complaint, was served by certified mail addressed to the respondent at his last known business address as it appears in the license records of the Department of State and posted on January 9, 2009. That mail was returned by the Postal Service with a forwarding address. There is no evidence that it was re-mailed. On March 30, 2009 the respondent faxed the tribunal to request an adjournment on the grounds that he did not receive the notice and complaint and had just learned of the hearing in a telephone call from Mr. Kenny. In response the matter was adjourned to April 29, 2009. On March 30, 2009 notices of adjournment were sent by regular mail addressed to the respondent at both his last known business address and his residence address as they appear in the license records of the Department of State and they have not been returned by the Postal Service. In addition, on April 3, 2009 notices of hearing together with copies of the complaint addressed to the respondent at both his last known business address and his residence address were posted by certified mail. The mailing to the business address was returned by the Postal Service marked “unclaimed” after apparently having been forwarded to the post office box previously provided as a forwarding address on the returned January 9, 2009 mailing. Neither the mailing to the residence address nor the return receipt for that mailing was returned (State’s Ex. 1).
2) The respondent is currently licensed for the June 8, 2007 to June 7, 2009 term as a Real Estate Broker representing Sand Dune Real Estate Inc. at a business address of 108 Bedford Avenue, Bellmore, NY 11710 pursuant to an application filed on June 7, 2007 (State’s Ex. 2 and 6). I take official notice of the records of the Department of State that he also holds an inactive license as an Associate Real Estate Broker for the December 1, 2007 to November 30, 2009 licensing period which was issued to him in association with Island Advantage Realty in response to an application submitted on November 30, 2007, which association was terminated on April 2, 2008.
3) By order dated July 7, 2001 the respondent was ordered to make payments for the support of his two minor children. By order of Family Court, Nassau County, dated September 19, 2007 it was found that the respondent was $73,852.00 in arrears on those payments and judgement was entered against him for $60,206.00 (the amount sought in the application to the Court plus $100.00 in costs and disbursements) (State’s Ex. 4).
4) By order on consent dated March 5, 2008 the support order was modified to provide for a continued weekly payment of $300.00 and the arrears were established to be $44,700.00 to be paid in a $10,000.00 lump sum payment and weekly payments of $230.76, and the prior judgements for arrears (in addition to the September 19, 2007 judgement there was apparently a January 8, 2002 judgement for $13,646.00) were vacated (State’s Ex. 5).
5) By applications dated March 25, 2005, July 19, 2006, February 1, 2007, June 7, 2007, and November 30, 2007 the respondent applied for licenses as a Real Estate Broker in various capacities. On each of those applications, including for the licenses he currently holds, he affirmed, under the penalties of perjury, that “I am not under obligation to pay child support” (State’s Ex. 6).
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- Pursuant to General Obligations Law §3-503 every applicant for any license required by the laws of the State of New York, or for renewal of such a license, must certify in the application, as of the date the application is filed, whether he or she is under obligation to pay child support and, if he or she is under such an obligation, whether he or she meets one of the following requirements: Payments are not four or more months in arrears; payments are being made by income execution or by court agreed payment or repayment plan or by a plan agreed to by the parties; the child support obligation is the subject of a pending court proceeding; or he or she is receiving public assistance or supplemental security income. If the applicant is under an obligation to pay child support and does not meet one of the foregoing requirements the license may be issued or renewed only with the condition that it will expire in six months unless by the end of those six months the licensee submits a sworn, written certification that: He or she is no longer in arrears in the payment of child support; payments are being made by income execution or by a payment plan agreed to by a court or the parties or with the appropriate support collection unit; the child support obligation is the subject of a pending court proceeding; or he or she is receiving public assistance or supplemental security income.
The respondent submitted five Real Estate Broker applications at a time that he was under an obligation to make child support payments, but stated on those applications that he was not under such an obligation. By doing so he demonstrated untrustworthiness on five separate occasions. Further, since at the time that he made the application for his current active license he was more than four months in arrears and was not making payments, there was no pending court proceeding, and there is no evidence that the respondent was receiving public assistance or supplemental security income, that license, had the facts not been concealed by the respondent, would have had to have been issued for only six months and not, as was done, for two years.
Therefore, considering that the respondent demonstrated untrustworthiness on five separate occasions by submitting five fraudulent applications for licenses as a Real Estate Broker and that the active license which he currently holds was issued for a two year term when, had the respondent not lied on his application, it could only have been issued conditionally for six months, the respondent’s licenses should be revoked.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT the license of Louis M. Nunziata as a Real Estate Broker representing Sand Dune Real Estate Inc., UID #31NU1156830, and his inactive license as an Associate Real Estate Broker, UID #30NU1174745, are revoked effective June 1, 2009, and he is directed to send his license certificates and pocket cards 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: April 29, 2009