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-

MOEZ PIERRE-LOUIS,

ROLANDE B. LOCHARD,

ROLANDE REALTY, Inc.

                                                Respondents.

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            The above matter was the heard by the undersigned, Ziedah F. Giovanni, on March 4, 2009, at the office of the Department of State located at 123 William Street, New York, New York.

            Respondent Roland B. Lochard did not appear.

            Respondent Moez Pierre-Louis did not appear.

            The Division of Licensing Services (DLS) was represented by John Kenny, Esq.

 COMPLAINT

             The complaint alleges Respondent Moez Pierre-Louis failed to return deposit money to a potential buyer in a failed transaction, failed to give deposit money to his broker, failed to inform his broker of the acceptance of the deposit, failed to obtain an agency disclosure agreement, and directed a potential buyer to pay a third party that was not the broker.

            The complaint alleges Respondent Rolande B. Lochard failed to properly supervise Respondent Pierre-Louis.

    FINDINGS OF FACT

            1) Notice of hearing, together with a copy of the complaint, was served on Respondent Pierre-Louis by certified and regular mail at the address in the records of the Department of State, and at an additional address he provided to DLS. Both certified mailings were returned marked “unclaimed.” It is not clear from the evidence whether the regular mailings were returned.

            2) Notice of hearing, together with a copy of the complaint, was served on Respondent Lochard by certified mail at the business address in the records of the Department of State. The receipt was returned, signed by the recipient.

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            3) Respondent Lochard is licensed as a corporate broker representing Rolande Realty, Inc. at a business address of 901 Nostrand Avenue, Brooklyn, New York 11225. She is licensed for the period of August 31, 2008 to August 31, 2010 (State’s Ex. 4).

            4) At all times relevant to this proceeding, Respondent Pierre-Louis was duly licensed as an associate broker under the sponsorship of Rolande Realty, Inc. (State’s Ex. 3) and Respondent Lochard. That license was in effect until its automatic expiration on November 17, 2005. The tribunal takes official notice of the records of the Department of State that reflect Respondent Pierre-Louis is currently licensed as a real estate broker for a limited liability company for the period terminating March 12, 2011. He represents Real Estate & Development Management, LLC at a business address of 829 Seaman Avenue, Baldwin, New York 11510.

            5) In May or June of 2009, Respondent Pierre-Louis showed Ms. Celesteen Stephens property located at 487 and 489 E. 95^th Street, Brooklyn, New York (“subject property”). At no time did Respondent Pierre-Louis show Ms. Stephens the inside of the subject property.

            6) Ms. Stephens signed an agency disclosure form provided to her by Respondent Pierre-Louis (State’s Ex. 15).

            7) The seller of the subject property was Paredium Investment Group, Inc., represented by its president, Mr. Marlon Thomas. Ms. Stephens and Mr. Thomas signed a Contract of Sale that indicated a closing date of July 20, 2005 (State’s Ex. 6).

            8) Ms. Stephens gave Respondent Pierre-Louis a deposit for the subject property in the form of one check for $10,000.00 (State’s Ex.7) and another for $17,500.00. Respondent Pierre-Louis directed Ms. Stephens to assign the $10,000.00 check to Monique St. Clair, Mr. Thomas’ wife, and the $17,500.00 to Mr. Edward Kelly, Mr. Thomas’ attorney. Ms. Stephens gave both checks to Respondent Pierre-Louis.

            9) The sales transaction failed, and Respondent Pierre-Louis returned $17,500.00 to Ms. Stephens in November of 2005. On several occasions, Ms. Stephens contacted Respondent Pierre-Louis and requested a refund of the remaining $10,000.00.

            10) Respondent Pierre-Louis never told Respondent Lochard about his relationship with Ms. Stephens or the subject property. Respondent Lochard did not become aware of Respondent Pierre-Louis’ work on this particular transaction until Ms. Stephens approached her to inquire about the deposit. After Respondent Lochard confronted him, Respondent Pierre-Louis represented to her that he would return the final $10,000.00 to Ms. Stephens.

            11) In March of 2006, Respondent Pierre-Louis and Ms. Stephens signed an Assignment of Claims agreement, in which he agreed to pay Ms. Stephens $10,000.00 in $2,000.00 monthly installments commencing on April 15, 2006 (State’s Ex. 9).

            12) There were insufficient funds to support the first and only check Respondent Pierre-Louis wrote to Ms. Stephens (State’s Ex.10). Ms. Stephens was charged a $10.00 penalty when the check was returned by her bank.

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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- As an associate broker, the respondent’s practice of real estate brokerage was governed exclusively by the provisions of Real Property Law (RPL) Article 12-A as they pertain to real estate salespersons. RPL §440[2].