742 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-

 

KHEMNAUTH SOOKRAM

 

                                                Respondent.

 

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            The above matter was heard by the undersigned, Ziedah F. Giovanni, on March 24, 2009 at the office of the Department of State located at 123 William Street, New York, New York.

 

            The respondent did not appear.

 

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

 

 

 COMPLAINT

 

 

            The complaint alleges that the respondent failed to file termination of association notices for certain real estate salespersons, and failed to cooperate with an investigation of the Department of State.

 

    FINDINGS OF FACT

 

 

            1) The respondent is duly licensed under the name Khemnauth Sookram as corporate broker representing Homeland Realty at a business address of 35-21 Farrington Street, Suite 100A, Flushing New York. His term expiration is June 25, 2010.

 

            2) According to the testimony of DLS District Manager, Ernita Gant, Mr. Raymon McAdam, a former broker for a Homeland Realty branch office, submitted his brokerage licence and branch office license for the office located at 111-48 Lefferts Boulevard, Richmond Hill, New York. Mr. McAdam subsequently opened a separate business at the same location, under a different license.

 

            3) The tribunal takes official notice of the records of the Department of State reflecting Mr. McAdam relinquished licences on April 2, 2008, and is currently licenced as a Limited Liability Broker for First Homeland Realty, LLC, located at 111-48 Lefferts Boulevard, Richmond Hill, New York.

 

            4) On June 26, 2008, the respondent, who was formerly an associate broker working with Mr. McAdam, was issued a license as a corporate broker representing Homeland Realty at 35-21 Farrington Street, Suite 100A, Flushing NY 11354 (Licence #104912148). Ms. Gant testified there

 

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is no longer a branch office for Homeland Realty at the Lefferts Boulevard address. However, it appears that upon the issuance of the respondent’s corporate broker license, the branch office license (License # 39HO1083706) at located at Lefferts Boulevard became reactivated. Consequently, all of the individuals previously associated with the branch office became re-associated.

 

            5) Ms. Hill testified that the Department of State received letters of complaint from salespersons who reported they remained associated with the Homeland Realty Lefferts Boulevard branch office after directing the respondent to terminate their associations. No letters or preliminary statements of complaint were provided to the tribunal.

 

            6) By letter dated July 30, 2008, and sent to the respondent’s email and to the respondent’s business address on record with the Department of State, the respondent was notified that he must provide proof within 24 hours that the association of seven salespersons and the Homeland Realty Lefferts Boulevard branch office have been terminated. The letter warned that failure to comply might be deemed a demonstration of untrustworthiness, and advised the respondent of his duty to file a termination of association in accordance with Article 12A of Real Property Law 441-b (11) (State’s Ex. 4).

 

            7) By letter date August 14, 2008, and sent to the respondent’s last known business address and email account, DLS directed the respondent to cancel the branch office license and file a termination of association for Albert E. Phaneuf and Michael J. Carrano. He was also directed to file a change of address notification on the “E-Access New York” website for any salespersons or associate brokers who wished to remain associated with him at another branch office. An additional email was sent to a separate email account on August 27, 2008 (State’s Ex. 6, 7).

 

            8) On August 27, 2008, in a phone conversation with Ms. Gant, the respondent indicated he would comply with the directives of the Department of State by August 29, 2008. Subsequent to the conversation with Ms. Gant, DLS sent a final email to two separate email addresses, reminding the respondent that he must comply with the Department of State’s directives by 4:00 pm on Friday, August 29, 2008 (State’s Ex.9). The respondent did not comply.

 

            9) The tribunal takes official notice of the records of the Department of State reflecting that the respondent currently retains an active branch office license (# 39HO1083706) at 111-48 Lefferts Boulevard.

                        

 

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 (3rd 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 (3rd Dept. 1999); Jacoby v. New York State Board for Professional Medical Conduct, 295 AD2d 655, 743 NYS2d 192 (3rd Dept. 2002). In this case, the applicant was properly served by certified and regular mail at his last known business address and home address.

 

            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 (2nd Dept. 2005). “The question...is whether a ‘conclusion or ultimate fact may be extracted reasonably–

 

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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 Article 12a of Real Property Law 441-b (11), “If a real estate salesperson shall leave the service of a real estate broker, the real estate broker shall file a termination of association notice on such form as Secretary may designate. The respondent ignored the Department of State’s directive to file particular termination of association notices by August 29, 2008. By failing to comply in a timely manner, he has violated this provision, and thereby demonstrated untrustworthiness and incompetency.

 

            IV - 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. By failing to comply with the Department of State’s directive to provide proof of termination of the branch office and associated salespersons, the respondent thwarted the Department’s investigation, thereby violating this provision.

 

                                                             DETERMINATION

 

            WHEREFORE, IT IS HEREBY DETERMINED THAT respondent Khemnauth Sookram, UID#30SO1106594, has violated Real Property Law §§441-b(11) and 442-e[5], and demonstrated untrustworthiness and incompetence in violation of Real Property Law §441-c. Accordingly, pursuant to Real Property Law §441-c, the branch office license #39HO1083706 is revoked, effective immediately. Furthermore, the respondent shall pay a fine of $3,000.00 to the Department of State on or before August 20, 2009. Should he fail to pay the fine, his license as a corporate broker, UID #31101200305, shall be suspended for a period commencing on August 21, 2009 and terminating 6 months after the receipt by the complainant of his license certificate and pocket card. 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: July 15, 2009