300 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-
VALERIE REYES, ROMAN DAVYDOV,
EXIT NOW REALTY, and EXIT FIRST
CHOICE,
Respondents.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on March 25, 2009 at the office of the Department of State located at 123 William Street, New York, New York.
The respondents having been advised of their right to be represented by attorneys choice to represent themselves.
The complainant was represented by David Mossberg, Esq. on a complaint drafted by Senior Attorney Linda D. Cleary, Esq.
COMPLAINT
The complaint alleges that Ms. Reyes improperly solicited a sales listing from the owner of a home which was listed on a cease and desist list and did business under the name and from the address of a brokerage firm with which she was not licensed, and that Mr. Davydov is responsible for Ms. Reyes’ conduct and failed to properly supervise Ms. Reyes.
FINDINGS OF FACT
1) Notices of hearing together with copies of the complaint were served on the respondents by certified and first class mail (State’s Ex. 1) the receipt of which the respondents acknowledge.
2) Mr. Davydov is, and at all times hereinafter mentioned was, duly licensed as a Real Estate Broker representing Exit Realty Now (State’s Ex. 2).
3) At all times hereinafter mentioned Ms. Reyes was duly licensed as a Real Estate Salesperson associated with Exit Realty Now at 91-04 101st Avenue, Ozone Park, New York. On August 18, 2008 she changed her association to Exit Realty First Choice at 180-31 Union Turnpike, Fresh Meadows, New York (State’s Ex. 2).
4) On March 3, 2008 Ms. Reyes rang the doorbell at the 68-15 64th Street, Glendale, New York two family home (State’s Ex. 5) of Carolyn J. Eiche which is was listed under “Glendale” on then current cease and desist list for Queens County (State’s Ex. 6). Ms. Reyes asked Ms. Eiche if she was interested in listing her home for sale and gave her a business card which indicated that she was a “REALTOR, CBR” with Exit First Choice Realty at 180-31 Union Turnpike, Queens, NY 11365 (State’s Ex. 3, 4, and 7).
5) According to the Multiple Listing Service of Long Island and the United States Postal Services Ms. Eiche’s home is located in Flushing, New York (Resp. Ex. A). According to GeoData Direct, a property information service used by the real estate brokerage business, and zip-codes.com, Ms. Eiche’s home is located in Ridgewood, New York, and according to mortgage documents filed with the New York City Department of Finance, Office of the City Register, the home is located in Queens, New York (Resp. Ex. B).
6) Mr. Davydov maintains two real estate brokerage offices, Exit Realty Now and Exit Realty First Choice, and he supervises the Salespersons in both offices. However at the time in question, and apparently still at the time of the hearing, the Exit Realty Now office was closed for renovations and all of the salesperson were working out of the Exit Realty First Choice office. Mr. Davydov testified that he was advised by a Department of State employee he could not name that if he has two offices his Salespersons can work out of either. However he did not tell that person that the offices have two different names.
7) It is the respondents’ regular practice to consult the various cease and desist lists before contacting any home owner. The solicitation of a listing from Ms. Eiche resulted from the confusion caused by her home being in an area which different sources listed as being in variously Flushing, Ridgewood, Glendale, or just Queens, New York, the fact that the names of neighborhoods in Queens can vary from one side of the street to the other, and the fact that the Queens cease and desist list places properties in various specified neighborhoods. On the day in question Ms. Reyes was consulting the Ridgewood section of the list, not the Glendale section. Each of those sections of list have different properties located on 64th Street.
OPINION AND CONCLUSIONS OF LAW
I- Being artificial entities created by law, Exit Realty Now and Exit Realty First Choice can only act through their officers, agents, and employees, and are, therefore, bound by the knowledge acquired by and is responsible for the acts committed by its representative broker, Mr. Davydov and its Salesperson Ms. Reyes, within the actual or apparent scope of their 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. Likewise, as the representative broker, Mr. Davydov is responsible for their acts. Real Property Law (RPL) § 442-c.
II- Pursuant to RPL §442-h[3][a] the Secretary of State may establish cease and desist zones and the owners of residential property within those zones may request that their names and addresses be included on a cease and desist list, thereby expressing their wish not to be solicited to list their homes for sale by Real Estate Brokers and Salespersons or by persons regularly engaged in the trade or business of buying and selling real estate. By soliciting a listing for sale of a house which was on the cease and desist list the respondents violated that statute. However, that violation resulted from confusion caused both by various governmental and private agencies calling the neighborhood in which the house is locate by assorted names and by the way that the Queens County cease and desist list is organized. It is no mystery how a person can be confused about in what neighborhood a property is located when various neighborhood share the same zip code and change from one side of the street to the other. Since, therefore, the solicitation in question was the result of an honest mistake by a person who was attempting to abide by the cease and desist list and was neither intentional nor the result of negligence the charge the respondents violated the cease and desist order should result in no more than a reprimand. The tribunal suggests that so as to avoid such confusion in the future the complainant may wish to consider re-organizing the Queens County cease and desist list by merely listing properties by address, in numerical and alphabetical order, and without breaking them down by the arbitrarily and imprecisely designated neighborhoods of that county.
III- A Real Estate Salesperson may not properly hold herself out to be working for a real estate brokerage company with which she is not licensed or out of an address at which she is not licensed, and it is improper for a Real Estate Broker to have a Salesperson who is associated with him or it do so. Real Property Law §441-a. At the direction of Mr. Davydov Ms. Reyes used a business card which indicated that she was licensed with one of his companies at a particular address while she was licensed with another company at a different address. By doing so they both demonstrated incompetency. However, the seriousness of Ms. Reyes’ violation is mitigated by the fact that she was acting as directed by her supervising broker, and that of Mr. Davydov is mitigated by his mistaken belief, based on information received from an employee of the complainant to whom he had inadvertently not given complete information, that his directions were proper.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Valerie Reyes, Roman Davydov, Exit Realty Now, and Exit Realty First Choice have violated Real Property Law §441-h and demonstrated incompetency, and accordingly, pursuant to Real Property Law §441-c, they are reprimanded therefore.
Roger Schneier
Administrative Law Judge
Dated: April 6, 2009