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DEPARTMENT OF STATE

OFFICE OF THE SECRETARY OF STATE

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In the Matter of


ENA TAJUDEEN, Footnote

  

                                    Appellant,

                                                                                                DECISION ON APPEAL

                        -against-                                                                      

                                                                                                        56 DOS APP 09

DEPARTMENT OF STATE

DIVISION OF LICENSING SERVICES,


                                    Respondent.

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            Ena Tajudeen (Appellant) has appealed from a determination of the Office of Administrative Hearings (1919 DOS 07) issued on October 2, 2007. Following an administrative hearing held earlier that day, at which Appellant did not appear or submit evidence, Administrative Law Judge (ALJ) Roger Schneier determined that Appellant demonstrated untrustworthiness and incompetency in availing her license as a real estate broker to Yaniv Erez and failing to adequately supervise Mr. Erez in violation of 19 NYCRR §175.21. Pursuant to Real Property Law § 441-c, the ALJ directed that all licenses issued to Appellant as a real estate broker, including as an individual and under the name Rite Buy Homes, shall be suspended for a period commencing on November 1, 2007 and terminating one year after the receipt by the Department of State of her license certificates and pocket cards (1919 DOS 07, at p. 6).

            By letter received on March 26, 2009, Appellant filed with the Secretary of State a memorandum of appeal, stating only that she was “requesting an administrative hearing” (Appellant’s Memorandum of Appeal). Respondent Division of Licensing Services filed a memorandum in opposition to the appeal with the Secretary of State on April 22, 2009.

FINDINGS OF FACT

            Following a review of the record on appeal, the Findings of Fact as stated by the ALJ (see 1919 DOS 07) are hereby adopted for the purposes of this appeal.  

OPINIONBy fax sent to the Department of State on March 26, 2009, Appellant has requested a new administrative hearing. Appellant was not present at the administrative hearing below (Transcript, at p. 3). The record shows, however, that Appellant received and signed for the Notice of Hearing and Complaint as sent by the Division of Licensing Services via certified mail prior to the administrative hearing (State’s Ex. 1). Thus, notice of the hearing and the complaint was properly served by the Division of Licensing Services upon Appellant.

            On September 26, 2007, a request for an indefinite adjournment of the administrative hearing was submitted to the ALJ on Appellant’s behalf by Kira Glastein, MA a social worker with the Lenox Hill Women’s Shelter. Therein, Ms. Glastein stated that Appellant “will not be able to make this hearing so I am requesting an adjournment . . . Ms. Tajudeen recently became homeless and had developed an eye cataract that has made it difficult for her to get around alone . . . She is requesting that the Hearing be postponed until she can correct this physical condition.” Later that day, the ALJ responded via fax to Ms. Glastein stating, “While I sympathize with Ms. Tajudeen I cannot grant a request for an open ended adjournment, particularly since there are other respondents in the matter. Accordingly, the matter will proceed as scheduled.”

            The authority to grant adjournments is within the discretion of the ALJ (19 NYCRR §§ 400.2(i); 400.11). In exercising such discretion, an ALJ may not act unreasonably or in an arbitrary fashion. Appellant, with the assistance of a social worker, submitted a timely request for adjournment explaining that she had recently become homeless and had developed a medical condition, and that such circumstances would prevent her from attending the hearing as scheduled. Such circumstances, when credibly presented, warrant adjournment. Although the request was open-ended, the ALJ, in his discretion, could have fixed a future date and granted the adjournment, or reserved decision and informed the Appellant of the need to present a proposed date for a future hearing. While it was clearly within the ALJ’s authority to deny Appellant’s request, considering the circumstances presented and reviewing the adjournment request de novo, I believe that the interest of justice favors the creation of as complete a record as possible and that Appellant should be given the opportunity to have her “day in court” to present evidence, argument and affirmative defenses before the ALJ. Therefore, I reach a different result herein.

            The hearing record, in its present form, demonstrates that Appellant applied for a real estate broker’s license on behalf of Next Home Realty at the instance of Yaniv Erez, and falsely indicated on the application that she was an officer of that corporation. Once the license was obtained, Appellant allowed Erez to falsely hold himself out as the broker for that entity although Erez was licensed only as a real estate salesperson. Appellant paid none of the operating expenses of the business, did not supervise its operations, did not have keys to its office, and signed blank real estate salesperson applications and blank real estate change of association cards for use by Mr. Erez (Transcript, at pages 23-28). Such acts would constitute significant violations of 19 NYCRR §175.21 and demonstrations of untrustworthiness and incompetency, as determined by the ALJ.

            Although Appellant’s request for a new hearing does not argue or claim that new mitigating evidence has come to light, raise an objection to the facts found by the ALJ, or make any claim that the ALJ’s articulation and interpretation of the applicable laws and regulations was in error, Appellant clearly desires her “day in court” and the opportunity to be heard. Considering the foregoing, the decision of the ALJ should be modified, the matter remanded for additional findings of fact and conclusions of law as to Appellant’s conduct, and Appellant provided with the opportunity to appear before the ALJ and present a defense to the charges and proof brought against her.

DETERMINATION


            Based on the foregoing, the decision of the Administrative Law Judge (1919 DOS 07) is hereby modified as follows:

1.         Those portions of the first paragraph of that part of the Decision of the ALJ captioned “Determination,” as specifically related to Appellant Ena Tajudeen shall be vacated pending determination on remand (see 1919 DOS 07, at p. 6); and

2.         As so modified, the remaining portion of the ALJ’s determination shall be affirmed in its entirety; and

3.         The hearing record shall be reopened and the matter shall be remanded for additional findings of fact by the ALJ. Upon remand, Appellant shall provided with the opportunity to appear before the ALJ, examine the evidence submitted against her, and present a defense.

 

So ordered on: October __, 2009                    __________________________________________

                                                                                    Daniel E. Shapiro

                                                                                    First Deputy Secretary of State