973 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-

ORLY SROKA, GEORGE FUIAXIS, and

ZEN REALTY INC.,

                                                Respondents.

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            The above noted matter came on for hearing before the undersigned, Roger Schneier, on October 7, 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 chose to represent themselves.

            The complainant was represented by staff attorney David Mossberg, Esq. appearing in substitution for Senior Attorney Linda Cleary, Esq.

COMPLAINT

            The complaint alleges that the respondents: Retained an unearned commission; failed to satisfy a judgment; and failed to provide a required agency relationship disclosure form.

FINDINGS OF FACT

            1) Notices of hearing together with copies of the complaint were served by certified mail (State’s Ex. 1).

            2) Orly Sroka is duly licensed as a Real Estate Salesperson in association with Amorelli Realty at 36-01 30^th Avenue, Astoria, NY 11103. From March 15, 2007 to July 23, 2008 she was licensed in association with Zen Realty Inc. (hereinafter “Zen”), a licensed Real Estate Broker located at 35-01 30^th Avenue, Astoria, NY 11103 represented by George Fuiaxis (State’s Ex. 2).

            3) On August 6, 2008, in Civil Court, County of Queens, Small Claims Part, Amos Luzon was granted a judgement against Zen in the amount of $2,020.00. That judgement was based on Mr. Luzon’s claim that Zen had retained an unearned commission in a transaction in which a lease had not been executed (State’s Ex. 4). The judgement has not been satisfied.

            4) The commission arose out of the proposed rental of an apartment in a two family dwelling. Ms. Sroka was involved in the initial transaction but Mr. Fuiaxis took over from her, and after the first day Ms. Sroka had nothing to do with it. According to Ms. Sroka’s un-refuted testimony she provided Mr. Luzon with an agency relationship disclosure form. She received no part of the commission.

OPINION AND CONCLUSIONS OF LAW

            I- By granting Amos Luzon a judgement in his suit against Zen the Civil Court found that Zen retained an unearned commission. In spite of that Zen and Mr. Fuiaxis, who as representative broker of Zen, a corporation which can act only through its officers and employees is responsible to assure that it meets its legal obligations, have failed to satisfy that judgement for over one year. They have thereby demonstrated untrustworthiness. Department of State v Feldman, 113 DOS 80, conf'd. sub nom Feldman v Department of State, 81 AD2d 553, 440 NYS2d 541 (1981); Division of Licensing Services v Shulkin, 40 DOS 90; Division of Licensing Services v Janus, 33 DOS 89." Division of Licensing Services v Harrington, 123 DOS 93 at 4. As there is no evidence connecting Ms. Sroka with the improper retention of the commission the charge that she participated in the failure to refund the commission is dismissed.

            II- The evidence does not support the allegation that the respondents failed to provide Mr. Luzon was an agency relationship disclosure form. Mr. Luzon neither testified nor submitted an affidavit, while Ms. Sroka testified that such a form was provided to Mr. Luzon. Accordingly, that charge is dismissed.

DETERMINATION

            WHEREFORE, IT IS HEREBY DETERMINED THAT George Fuiaxis has demonstrated untrustworthiness and incompetency, and accordingly, pursuant to Real Property Law §441-c, he shall pay a fine of $500.00 to the Department of State on or before November 30, 2009, and should he fail to pay the fine his license as a Real Estate Broker, UID 31FU1086928, shall be suspended for a period commencing on December 1, 2009 and terminating two months after the receipt by the Department of State of his license certificate and pocket card, and upon payment of the fine or termination of the suspension in lieu thereof the license shall be further suspended until such time as he has provided proof satisfactory to the Department of State that he has fully satisfied the judgement in Amos Luzon v Zen Realty Inc., Civil Court of the City of New York Index Number S.C.Q 3486/08, including all accrued interest at the legal rate for judgements of 9% per year. He is directed to send a certified check or money order for the fine payable to “Secretary of State,” or his license certificate and pocket card, and proof of full satisfaction of the judgement, by certified mail addressed to Norma Rosario, Department of State, Division of Licensing Services, P.O. Box 22001, Albany, New York 12201-2201, and

            IT IS FURTHER DETERMINED THAT the complaint against Orly Sroka is dismissed.

                                                                                   Roger Schneier

Administrative Law Judge

Dated: October 13, 2009