DEPARTMENT OF STATE

OFFICE OF SECRETARY OF STATE

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In the matter of

EDDIE HUGO ROSSI, real estate broker,

ROSELAND REALTY, brokerage,

EDDIE H. ROSSI, notary public,

                                                Appellant,                                           DECISION ON APPEAL

                        -against-                                                                       20 DOS APP 10

DEPARTMENT OF STATE

DIVISION OF LICENSING SERVICES

                                                Respondent.

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            Eddie Hugo Rossi (“Appellant”) has appealed from a decision issued by the Office of Administrative Hearings (“OAH”) on November 9, 2009 (1104 DOS 09). Following an administrative hearing held on June 4, 2009, at which Appellants did not appear or submit evidence, Administrative Law Judge (ALJ) Ziedah F. Giovanni determined that Appellant Rossi, a licensed real estate broker, former notary public, and corporate real estate broker for Roseland Realty, violated Real Property Law §§ 441-a(3), 441-a(5), 442-e(5) and 443, as well as 19 NYCRR § 175.20(d). The ALJ also determined that Appellant demonstrated untrustworthiness in violation of Real Property Law § 441-c. As a result, the ALJ revoked the real estate licenses of both Appellant and Roseland Realty, as well as Appellant’s notary license, effective immediately.

            By electronic correspondence dated November 17, 2009, Appellant submitted a memorandum of appeal to the Secretary of State, alleging that he did not receive proper notice of the hearing. Appellant states that he “was out of the country resolving personal business” and, therefore, is seeking a new hearing. Appellant also requested that future correspondence be directed to his address at “95-23 75^th Street, Ozone Park, NY 11416" (Appellant’s Brief, at 1). The Division of Licensing Services (“Respondent”) filed a Memorandum of Law in Opposition of Appeal with the Secretary of State on December 1, 2009. This appeal will now be decided on the merits. 

FINDINGS OF FACT

            Having reviewed the hearing record and considering that the ALJ’s Findings of Fact have not been disputed by Appellant, the Findings of Fact stated in numbered paragraphs 1 through 19 of the ALJ’s Decision are hereby adopted and incorporated by reference for purposes of this appeal (1104 DOS 09).

            Additionally, judicial notice is hereby taken of prior disciplinary action taken against Appellant, involving a scheme with common elements to that described herein in which Appellant demonstrated untrustworthiness and incompetency by improperly retaining rental deposits (see Division of Licensing Services v. Rossi, 746 DOS 06 (2006), stay denied 08 DOS APP 07).

OPINION

I.         Appellant was properly served with notice of the administrative hearing.

            Appellant contends that he did not receive proper notice of the administrative hearing held on June 4, 2009 (Appellant’s Brief at 1). Pursuant to Real Property Law § 442-e(2), before revoking or suspending the license of a real estate broker or salesperson, the Department of State is required to provided written notice of the hearing to the licensee at least 10 days prior to the date set for hearing. “Such written notice may be served by ... mailing same by certified mail to the last known business address of such licensee” (Real Property Law § 442-e(2)).

            Appellant is a licensed real estate broker and the licensed corporate real estate broker for Roseland Realty. The last business address on record with the Respondent for both Appellant and Roseland Realty is 92-07 Jamaica Avenue, Suite 102, Woodhaven, New York. Over two months before the administrative hearing, Respondent sent a notice of hearing and copy of the Complaint by regular and certified mail to Appellant’s address. Neither the certified mailing nor the regular mailing were returned to the Department by the United States Postal Service. Proper service may be effected regardless of actual receipt where the notice of the hearing and a copy of the complaint are sent to a party in a manner consistent with applicable law and reasonably calculated to effect notice, as was done here (see Persad v. Division of Licensing Services, 63 DOS APP 09; Pinger v. Division of Licensing Services, 23 DOS APP 07). Thus, notice was properly served.

            The holding of an ex parte, quasi-judicial administrative hearing, is permissible if notice of the place, time and purpose of the hearing was properly served (Patterson v. Dept. of State, 32 Ad2d 616 (3rd Dept. 1970); Fierro v. DOS, 30 DOS APP 07 (2007); Staley v. DOS, 14 DOS APP 01 (2001)). As notice of the hearing and a copy of the complaint were properly served on Appellant, the decision of the ALJ to go forward with the administrative hearing was proper.

II.        Substantial evidence in the record supports the ALJ’s determination.

            The ALJ correctly found that Appellant engaged in repeated acts of misconduct that warranted revocation of his licenses as a real estate broker and a notary public. Respondent brought this action after receiving two separate complaints against Appellant from Ms. Tiesha Watson and Ms. Shakira Moses. Both women approached Appellant to help them find apartments.

            Ms. Watson met Appellant at the offices of Zubair Realty Group (“Zubair Realty”), where Appellant expressed to her that he was an employee of Zubair Realty. Ms. Watson provided Appellant with a $230.00 cash deposit for the rental of an apartment at 523 Milford Street, Brooklyn, New York, for which no receipt was given. Appellant did not turn over the $230.00 to the landlord at the Milford Street apartment, nor did he provide Ms. Watson with an agency disclosure form. Although Appellant has, in the past, worked with Zubair Realty, Zubair Realty’s representative real estate broker, Mr. Zubair Chaudhry, stated that Appellant was never an employee of Zubair Realty. Mr. Chaudhry also stated that he knew nothing of Ms. Watson’s interest in the apartment, nor has he ever met the landlord at the Milford Street apartment (Zubair Letter to McGoldrick, State’s Exhibit 6, September 25, 2008).

            Ms. Moses met Appellant at 415 Kosciusko Street, Brooklyn, New York, which Appellant had held out to Ms. Moses as a rental property. One week after being shown the property, Ms. Moses provided Appellant with a cash deposit of $400.00. The property, however, was not a rental property, but was in fact a single-family home for sale.

            Zubair Realty was the listing agent for the 415 Kosciusko Street property. Appellant was only permitted to show Ms. Moses the house in his capacity as a broker for Roseland Realty, because he informed Mr. Chaudhry that he had a potential buyer interested in the property. In a letter to the Division of Licensing Services, Mr. Chaudhry stated that the Kosciusko Street property was never put up for rent by Zubair Realty, but that Appellant had merely picked up the key for a showing (State’s Exhibit 14). Mr. Chaudhry maintained that Appellant was not employed by his realty group and that Appellant was not authorized to solicit or negotiate for the sale or rental of the property to Ms. Moses on behalf of Zubair, nor was Appellant allowed to accept deposit money on behalf of Zubair Realty (Transcript, at pp. 17-18, 28-29). Nonetheless, Appellant provided Ms. Moses with a receipt using Zubair Realty letterhead. The ALJ determined that such acts demonstrated untrustworthiness in violation of Real Property Law § 441-c.

            A real estate broker is required to provide a potential tenant with an agency disclosure form “at the time of the first substantive contact with the buyer or tenant....” (Real Property Law § 443(3)(b)). Appellant met with both Ms. Watson and Ms. Moses and, in both instances, failed to provide agency disclosure forms. Such acts constituted violations of Real Property Law § 443, and demonstrated incompetence in violation of Real Property Law § 441-c.

            Following the complaints of Ms. Watson and Ms. Moses, Investigator McGoldrick sought to contact Appellant regarding the allegations. The only business address the Department has on record for Appellant is the 92-07 Jamaica Avenue address. When Investigator McGoldrick visited that address, he noted that it appeared to be a “vacant office” (Transcript, p. 17). Thereafter, the Investigator discovered that there are several addresses that Appellant has used or has provided to clients. Investigator McGoldrick sent several letters to those addresses in an attempt to contact Appellant and to test the veracity of the addresses that Appellant had provided to members of the public. None of the investigator’s letters were returned by the Postal Service, indicating that those letters were received by Appellant Rossi; he did not respond to any of these mailings. The ALJ determined that Appellant Rossi’s failure to apprise the Department of State of his address combined with his failure to respond to the Investigator’s letters and requests for information violated Real Property Law § 442-e(5), Real Property Law § 441-a(5), 19 NYCRR § 175.20(d) and Real Property Law § 441-a(3).

            Appellant has not sought renewal of his notary public license, which expired by its terms on October 5, 2009. However, the acts in question took place during the time Appellant was a registered notary public. Although Appellant was not acting pursuant to his duties as a licensed notary public when engaging Ms. Watson and Ms. Moses, a notary public may have his license revoked if he demonstrates a lack of good moral character “in other areas in which the public is concerned” (Patterson v. Dept. of State, 35 AD2d 616, 617 (3rd Dept., 1970)). Based on the surrounding circumstances, the ALJ was correct in finding that Appellant demonstrated a lack of good moral character warranting the revocation of his notary public license.

III.       A new hearing is not warranted under the circumstances presented.

            Appellant has requested a new hearing, stating that at the time of the June 4, 2009 hearing he was “out of the country resolving personal business.” Appellant, however, has not provided proof demonstrating that he was out of the county, nor stated the dates on which he purportedly left and returned, nor indicated whether he left a forwarding address or made other arrangements to responsibly handle his mail. As service upon Appellant was properly effectuated and repeated attempts were made contact him, his purported absence from the county does not present a valid excuse for his failure to attend the hearing.

IV.      Conclusion.

Reviewing the hearing record, it is determined that substantial evidence within the record supports the ALJ’s decision. As Appellant has neither contested the merits of the ALJ’s determination nor demonstrated that new and exculpatory evidence exists, there is no reason to disturb the ALJ’s Decision or remand the matter for further findings of fact. Moreover, Appellant’s violations, when viewed in the context of his similar past violations, warrant the penalty of revocation.

DETERMINATION

            Based on the foregoing, the Decision of the ALJ is hereby affirmed in its entirety. 

So ordered on: March 29, 2010                                  ____________________________________

                                                                                                Daniel E. Shapiro

                                                                                                First Deputy Secretary of State