DEPARTMENT OF STATE

OFFICE OF THE SECRETARY OF STATE

-----------------------------------------------------------X

In the Matter of

HEMANT BHUPSINGH and,

HOME LINK REALTY CORP.,

                                    Appellants,                                         DECISION AND ORDER

                        -against-                                                           36 DOS APP 10

DEPARTMENT OF STATE  

DIVISION OF LICENSING SERVICES,

                                    Respondent.

-----------------------------------------------------------X

            Hemant Bhupsingh, a licensed corporate real estate broker representing Home Link Realty Corp., and Home Link Realty Corp. (hereinafter, Appellants) has appealed an adverse determination of the Office of Administrative Hearings (OAH) (58 DOS 10). In a decision dated January 27, 2010, Administrative Law Judge (the ALJ) Roger Schneier found that Appellants violated Real Property Law § 441-c and demonstrated untrustworthiness by failing to pay lawfully obtained judgments against them, permitting a real estate salesperson to act as office manager, and serving an improperly altered judicial Order on a bank in an attempt to secure the release of funds. Pursuant to Real Property Law § 441-c, the ALJ suspended Appellant Bhupsingh’s license as a real estate broker representing Home Link Realty Corp. effective September 15, 2009 and, by decision dated January 27, 2010, ordered said license revoked effective March 1, 2010.

            On March 22, 2010, the Secretary of State received Appellant’s memorandum of appeal and request for a stay pending decision on appeal. Later that day, the Secretary received a memorandum in opposition to the request for a stay from the Division of Licensing Services (Respondent). In a decision dated March 29, 2010, the First Deputy Secretary of State denied Appellants’ application for a stay of the penalties imposed pending determination of this appeal (16 DOS APP 10). This appeal will now be decided on its merits.

FINDINGS OF FACT

            At all times relevant herein, Appellant Bhupsingh was licensed as a real estate broker representing Appellant Home Link Realty Corp. (State’s Ex. 2). On November 7, 1997, a judgment was rendered against Appellant Bhupsingh in Nassau County District Court in favor of Richard Gertler, Esq. for the sum of $30,599.27 in relation to unpaid attorney’s fees owed by Appellant (State’s Ex. 3; State’s Ex. 4). That judgment was recorded in the Nassau County Clerk’s office on April 9, 1998 (State’s Ex. 3). In an attempt to collect the judgment, Gertler served a restraining order on Chase bank, as the financial institution in which Appellant’s funds were held. Thereafter, Appellant submitted an Order to Show Cause to compel release of the funds in the bank, but the Court struck the paragraph ordering such release. Despite the Court’s action, Appellant served a copy of the Order to Show Cause, which was altered to re-insert the paragraph ordering the bank to release funds to him, on the bank (State’s Ex. 4).

            Mr. Gertler testified that he was unable to collect the sum at that time, but that there has been some partial payment of the judgment with an outstanding balance of over $25,000 remaining (Transcript, 9/15/09, at pp. 16, 24-25). Post-hearing submissions provided by Appellant’s attorney of record, Joseph F. Kasper, Esq., indicate, however, that an additional $12,167.10 was remitted from Appellant’s Chase Manhattan Bank in August of 2000 through an enforcement action by the Nassau County Sheriff’s Department, and that an additional enforcement action by Gertler resulted in a Marshal levy of $4,190.00 being served on Appellant’s North Fork Bank account in August of 2006 (Appellants’ Post-Hearing Memorandum, at pp. A-2, A-3). If true, the documents submitted in Appellants’ Post-Hearing Memorandum (at pp. A-2, A-3, A-4), indicate that an outstanding debt on the 1997 judgment of over $10,000.00 remains. As of the date of the administrative hearing, the judgment had not been satisfied and the time to appeal the judgment had lapsed (Transcript, 9/15/2009, at p. 16).

            On December 12, 2000, Maureen Calle, Appellant Bhupsingh’s former client, obtained a judgment rendered by Justice Levine in New York State Supreme Court, Queens County, against Appellant and his father, Aramsingh Bhupsingh, in the sum of $6,000 with interest from June 23, 2000 (State’s Ex. 5; State’s Ex. 6; Transcript, 9/15/09, at p. 33). Appellants state in their post-hearing memorandum that the judgment resulted from a “personal injury action brought by one of two women who got into an altercation in front of [Appellant’s] old office” (Appellants’ Post-Hearing Memorandum, at p. 5). Despite Appellant’s statement that they will “seek to vacate the judgment,” the judgment has not been satisfied, appealed, reversed, or modified, and remains outstanding (Appellants’ Post-Hearing Memorandum, at p. 5; State’s Ex. 6).

            On June 2, 2005, Appellant Home Link Realty Corp. was convicted of a violation of New York City Administrative Code § 15-223.1 in the Criminal Court of the City of New York, County of Queens, and ordered to pay a fine of $5,000 (State’s Ex. 7). The fine has not yet been paid, but Appellant testified that he had retained an attorney to assist with the resolution of that matter (Transcript, 9/15/2009, at p. 35). In Appellants Post-Hearing Memorandum, submitted on January 25, 2010, Appellant’s claimed that they “are seeking vacutur of said fine this week” (Appellant’s Post-Hearing Memorandum, at p. 5). The record on appeal is devoid of evidence that a motion to vacate was filed with the court.  

            On October 12, 2007, Queens County Supreme Court ordered the entry of a judgment in favor of Public Service Atlantic, LLC, Appellants’ former landlord, against Appellant Bhupsingh in the amount of $299,998.03 with interest and costs from August 1,2007 relating to a dispute “over rent, certificates of occupancy and capital improvements” (Appellants Post-Hearing Memorandum, at p. 5; State’s Ex. 8). According to an affidavit submitted by the attorney of record for Public Services Atlantic, LLC, and dated March 9, 2009, the judgment awarded “has not been satisfied, reversed, reversed, modified, and remains outstanding” (State’s Ex. 9). In the Post-Hearing Memorandum Appellant’s attorney, Mr. Kasper, states that he has been retained to seek to vacate the judgment in favor of Public Service Atlantic (Appellants Post-Hearing Memorandum, at pp. C-1, C-2, C-3). However, there is no documentary evidence in the record to support that any motion or action to vacate has been filed.

            In October of 2008, Respondent’s investigator Michael Nappi interviewed Appellant as part of an investigation into the aforementioned events. During the course of that interview, Appellant informed Investigator Nappi that Appellant Home Link Realty was managed by Deonarine Basdeo, a licensed real estate salesperson (State’s Ex. 2). Several advertisements published by Home Link Realty in October of 2007 identified Deonarine Basdeo as “Realtor/Manager” (State’s Ex. 11).

OPINION

I.         Timeliness of the appeal.

            A party to an administrative disciplinary proceeding may appeal a decision rendered by an administrative law judge to the Secretary of State by filing with the Secretary a written memorandum of appeal within 30 days of receipt of the ALJ’s decision, and serving a copy of the filing upon the opposing party (see 19 NYCRR § 400.2(k)). If an appeal is not filed within 30 days of receipt of the decision, the ALJ’s decision becomes “final and binding” as a matter of law (see 19 NYCRR § 400.2(j)). Respondent claims that Appellant failed to file its Memorandum of Law with the Secretary of State within 30 days of receipt of the ALJ’s decision and, therefore, the ALJ’s decision has become final and binding and this appeal should be dismissed.

            Department of State records demonstrate that the Office of Administrative Hearings mailed the ALJ’s decision to Appellant at his business address on file with the Department by registered and certified mail on January 27, 2010. Thus, the decision was sent to Appellant in a manner that was consistent with applicable law, reasonably calculated to effect notice, and properly served (see Pinger v. Division of Licensing Services, 23 DOS APP 07 (2007); Persad v. Division of Licensing Services, 63 DOS APP 09 (2009)). The decision was returned to the Office of Administrative Hearings (OAH) by the United States Postal Service marked “unclaimed.”

            Where a government entity has knowledge that notice was not received by a party, such as when notice is returned unopened, the government entity should take additional action to attempt to effect notice if practicable to do so (see Jones v. Flowers, 547 U.S. 220, 234 (2006); Pinger v. Division of Licensing Services, 23 DOS APP 07 (2007)). Knowing that Appellant did not receive the notice sent by certified mail, Appellant cannot be deemed to have received the decision by virtue of the January 27, 2010 mailing to his licensed business address.

            Respondent states that a copy of the ALJ’s decision was sent to Appellant’s attorney of record on January 27, 2010, and was not returned. Service upon a party’s attorney of record generally constitutes proper service upon the party in an ongoing action (see CPLR 2103(b)(2)). Where a party’s attorney of record has received a copy of a decision issued by an ALJ, such receipt is sufficient to commence the 30–day time period within which the party may seek an appeal to the Secretary of State. Here, however, the record on appeal and official Department of State records provides no affidavit of the date of mailing or other proof from which the date of receipt of the decision by Appellant’s attorney of record can be clearly determined. Therefore, for the purposes of this appeal, Appellant’s memorandum of appeal shall be deemed timely filed with the Secretary of State.

II.        The ALJ did not abuse his discretion in allowing the administrative hearing to proceed on September 15, 2009.

            This matter was originally calendared for an administrative hearing on May 28, 2009. A request for adjournment was made by Appellant’s counsel, and granted by the ALJ. The administrative hearing was then calendared for June 29, 2009. On Monday, June 29, 2009, the first of four proceedings which constitute the administrative hearing below occurred. At that time, Appellant appeared and stated to the ALJ that he was represented by counsel, but that his attorney Sharmela Bachu, Esq. “cannot make it” because “she has to be in court” (Transcript, 6/29/09, at pp. 2-3). In response, the ALJ stated that Ms. Bachu had sent him a fax on Friday, June 26, 2009, in which she “said she is your attorney[,] but she didn’t say she was representing you in this proceeding[,] and she didn’t ask for an adjournment because she had something else to do ... she said you needed time to prepare, even though you had an adjournment of a month to prepare ... She hasn’t filed a notice of appearance with me, and quite frankly, I think this is a delaying tactic” (Transcript, 6/29/09, at pp. 2-3). The ALJ then permitted counsel for Respondent Division of Licensing Services, David Mossberg, Esq., to begin its case-in-chief (Transcript, 6/29/09, at p. 3). Mr. Mossberg entered three exhibits into evidence and attempted to enter an attorney affirmation by Richard Gertler (Transcript, 6/29/09, at pp. 4-6). Appellant then challenged the truth of the affirmation, stating it was “inaccurate,” and began to argue against it in his own defense (Transcript, 6/29/09, at pp. 5-6). The ALJ informed Appellant that he would be given a chance to testify later in the proceedings (Transcript, 6/29/09, at p. 6). Mr. Mossberg and Appellant then engaged in brief debate regarding the proper characterization of a payment referenced in the affirmation marked for identification (Transcript, 6/29/09, at pp. 6-7).

            At that point, the ALJ, sua sponte and without objection from either party, adjourned the proceeding, stating:

            “We are not going to get anywhere today. Your records are incomplete, Mr. Mossberg. That’s not a criticism. Your stuff hasn’t been provided to you. Mr. Bhupsingh’s records are incomplete, for whatever reason. So, I’m going to adjourn the matter at this point. It will be sometime in September. I expect Mr. Bhupsingh, that you will sit down with your attorney and get everything in order. I’m not going to take speculation like, ‘I don’t have this document,’ or ‘I don’t have that document.” Or you have a document but it doesn’t show what it relates to. I want everything to be crystal clear because, quite frankly, when I see a real estate broker that has that many judgments against him, it sends up red flags about what kind of business that real estate broker is conducting. I’ll return to you, Mr. Mossberg, this affirmation. I won’t mark that into evidence at this point ... I’ll adjourn the matter until 10:00 a.m. on September 15. Mr. Bhupsingh, make sure you tell your attorney. I don’t have a notice of appearance so I’m not sending her anything. Also, tell her I expect to file a formal notice of appearance. There was a form which was included with the notice, and she has to fill that out and send it” (Transcript, 6/29/09, at pp. 7-8).

            On September 14, 2009, Appellant’s counsel, Sharmela Bachu, requested an adjournment of the proceedings scheduled to take place the following day “upon the consent of all parties” to “discuss settlement with the department of state.” Later that day, the ALJ responded by letter and facsimile, stating, “I am in receipt of your untimely request for a further adjournment, to which I am advised that [the] assigned litigator has not, in fact, consented ... the request is denied.” On Tuesday September 15, 2009, Appellant, Mr. Mossberg, as counsel for Respondent Division of Licensing Services, and Richard Gertler, Esq., as a witness for Respondent, appeared before the ALJ (Transcript, 9/15/09, at p. 3). At the commencement of the proceeding, the ALJ stated, “Mr. Bhupsingh, last night at 5:27 p.m., your lawyer, Sharda Bachu, sent me a fax, saying that she was no longer representing you ... And I see you are here without a lawyer” (Transcript, 9/15/09, at p. 4). Appellant then advised the ALJ that he retained attorney Joseph S. Kasper “last night,” and provided the ALJ with an affirmation from Mr. Kasper in which Mr. Kasper stated that he was actually engaged in another matter and could not appear at the September 15, 2009 proceeding, and requested an adjournment (Transcript, 9/15/09, at p. 5). The ALJ replied, “Mr. Mossberg has a witness here today, and I will allow him to go ahead with this witness, and then we will continue the matter, so that maybe Mr. Kasper will decide that it’s worthwhile to come in” (Transcript, 9/15/09, at p. 5).

            Mr. Mossberg then requested that he be allowed to present his entire case-in-chief, and submitted to the ALJ a certified Order from Hon. Jonathan S. Kaiman, Nassau County District Court Judge, “reflecting a pattern of [Appellant Bhupsingh] to adjourn proceedings, submit various attorney affirmations of actual engagement and then ultimately default on the proceedings” (Transcript, 9/15/09, at p. 5). Appellant Bhupsingh then began to protest, stating that at the time of the proceeding before Judge Kaiman, “I only had one attorney [who could not appear and that] at the same time the case was reopened, my father was in court on a serious matter, and I had to attend court with my father ... I asked to get an adjournment, and I couldn’t attend, because my father was seriously ill in the hospital, also” (Transcript, 9/15, 09, at p. 6).

            The ALJ then granted Mr. Mossberg’s request, stating:

“I have to tell you, I have gotten a sense from what has preceded here before, that you are seeking to delay this matter as long as possible, and not doing it in a manner that is up front ... I’ll take official notice of this Order of the District Court Judge, and I’m going to permit Mr. Mossberg to proceed ... And when he is finished with his case, then we will give you a chance to come in with your attorney” (Transcript, 9/15/09, at p. 7). 

            During the course of Mr. Gertler’s testimony, Appellant made two objections, neither of which were sustained (Transcript, 9/15/09, at pp. 10, 12). When Mr. Mossberg concluded his direct examination of Gertler, Appellant asked the ALJ whether he could ask Gertler some questions “later on” (Transcript, 9/15/09, at p. 17). The ALJ replied, “No. He is here now ... you had an ample opportunity to have an attorney here today” (Transcript, 9/15/09, at pp. 17). Appellant responded, “I didn’t know that this gentleman was not going to represent me today” (Transcript, 9/15/09, at p. 17). The ALJ replied, “that may or may not be ... I’m not making this man come in from Long Island again,” at which time Appellant began to cross-examine the witness (Transcript, 9/15/09, at pp. 17, 18-29).

            Appellant contends that the ALJ abused his discretion in declining to adjourn the administrative hearing on September 15, 2009, when Appellant appeared without counsel. Due process of law, as well as statutory law, requires that a party to an administrative hearing be afforded the opportunity to be represented by counsel (see Abramson v. State, 302 AD2d 885, 886 (4^th Dept., 2003); State Administrative Procedure Act § 501). However, a party to an administrative hearing is not deprived of any fundamental rights if unaccompanied by counsel, as the constitutional right to the effective assistance of counsel does not extend to administrative proceedings of this nature. “Counsel is not a necessary element of a fair hearing” (Borchers & Markell, New York State Administrative Procedure and Practice, § 3.6, at p. 46; see Matter of Post v. State, 245 AD2d 985, 986; Walston v. Axelrod, 103 AD2d 769, 771 (2d Dept. 1984)). A party represented by an attorney who has filed a notice of appearance with the ALJ on forms provided by the Department of State in accordance to 619 NYCRR 400.10, but appearing pro se due to attorney disability, should be afforded, through adjournment, the opportunity to secure a lawyer (see Walston v. Axelrod, 103 AD2d 769, 771 (2d Dept. 1984); Matter of Dennelly v. County Attorney, 88 AD2d 912, 913 (2d Dept. 1982); see also Crimi v. Droskoski, 217 AD2d 698, 699 (2d Dept. 1995); Mujtaba v. State Education Dept., 148 AD2d 819, 820 (3d Dept. 1989); United Deli Corp. v. State Liquor Authority, 14 Misc.3d 1220(A), 2007 NY Slip Op. 50096(U), 2007 WL 171903 (Sup. Ct., Kings County 2007)).

            Concomitant with the ALJ’s authority to conduct hearings is the ability to direct such procedural accommodations or to grant adjournments for good cause, where a reasonable basis for such action is presented (see 19 NYCRR § 400.11(a)). Where attorney disability is not established, but a party is rendered pro se due to the failure of retained counsel to appear at the scheduled hearing, the circumstances may warrant that the ALJ direct certain procedural accommodations to ensure fairness and the opportunity to be represented by counsel (see Mera v. Tax Appeals Tribunal of the State of New York, 204 AD2d 818, 820 (3d Dept. 1994)). For example, one such accommodation may be to provide the pro se party with the opportunity to have counsel review the record and submit proposed findings of fact and conclusions of law (see Baywood Electric Corp. v. NYS Dept. Of Labor, 232 AD2d 553, 554 (2d Dept. 1996)).

            At the close of the September 15, 2009 proceeding and the Respondent’s case-in-chief, the ALJ decided to continue the matter for additional proceedings, stating that the Office of Administrative Hearings “will send a notice to this new attorney with a date ... and I will expect this attorney and Mr. Bhupsingh to be prepared to go ahead” (Transcript, 9/15/09, at p. 44).

            The hearing record reflects that the ALJ provided Appellant with the opportunity to have counsel review the record and submit proposed findings of fact and conclusions of law in the form of a post-hearing brief (see 58 DOS 10, at p. 1). Considering that Appellant had over two months to retain counsel to represent him at the September 15, 2009 proceeding, that a witness had traveled in from Long Island to attend the hearing, and giving due deference to the credibility assessments made by the ALJ, who had the opportunity to observe the demeanor and tone of the Appellant, the ALJ’s decision to proceed with the hearing on September 15, 2009 but to continue the matter at a later date when Appellant could appear with counsel and to allow Appellant’s counsel to submit a post-hearing memorandum, was not an abuse of discretion.

III.       The ALJ did not abuse his discretion in relation to the proceedings on January 11, 2010.

            The hearing record shows that the proceedings were continued on November 19, 2009. On November 19, 2009, Mr. Mossberg appeared but neither Appellant nor Mr. Kasper were present (Transcript, 11/19/09, at p. 51). At that proceeding, however, Allan Jennings, Esq. appeared on behalf of Mr. Kasper and submitted an application of engagement to the ALJ requesting that the matter be adjourned until “January 11^th” 2010 (Transcript, 11/19/09, at p. 52). The ALJ granted the adjournment request, and the matter was scheduled for a final hearing date of “January 11th, 2010 at 10:00 a.m.” (Transcript, 11/19/09, at p. 52).

            At 10:00 a.m. on January 11, 2010, Mr. Mossberg appeared but neither Appellant nor Mr. Kasper were present, and no other representative from Mr. Kasper’s firm appeared at the scheduled hearing. No prior notice of conflict or application of engagement was made to the ALJ or the Division of Licensing Services, and despite repeated attempts to contact Mr. Kasper, Mr. Mossberg was unable to reach him (Transcript, 1/11/10, at p. 57). At 10:32 a.m., the ALJ closed the matter “with decision reserved” (Transcript, 1/11/10, at p. 58).

            On appeal, Appellant contends that the ALJ erred “in not permitting [Appellant] to introduce evidence on January 11, 2010 as to his payments to [his] creditor Richard Gertler, and in not ordering said Richard Gertler who testified as Complainant’s witness to appear at the adjourned date of January 11, 2010 for cross-examination by [Appellant’s] attorney as to payments actually made in great excess of the amounts testified to by said witness, or any other evidence in [Appellant’s] defense” (see Appellant’s Memorandum of Appeal, at pp. 3, 8, and 17).

            The record on appeal demonstrates that Appellant and Appellant’s counsel failed to appear at the hearing held on January 11, 2010 at 10:00 a.m., the adjournment date which Appellant’s counsel specifically requested at the hearing on November 19, 2009 and for which proper notice was provided. Had Appellant’s counsel appeared at the hearing, he would have been able to call and examine witnesses, enter documentary evidence and generally argue in defense of his client. In preparing for the hearing, Appellant’s counsel had rights to certain disclosure and possessed the power to independently subpoena witnesses (see 19 NYCRR §§ 400.3, 400.5). Thus, Appellant’s failure to introduce any additional evidence, call additional witnesses, or examine Mr. Gertler on January 11, 2010 is a self-inflicted wound, and his claim of ALJ error lacks merit in light of the record on appeal.

IV.      Appellant demonstrated untrustworthiness by failing to satisfy several lawfully obtained money judgments against him.           

            The Secretary of State has been granted wide discretion in determining what conduct can constitute untrustworthiness (see Gold v. Lomenzo, 29 NY2d 468, 477 (1972)), which may be found in activities unrelated to real estate brokerage (see Dovale v. Patterson, 85 AD2d 602 (2d Dept., 1981); Eich v. Shaffer, 136 AD2d 701, 703 (2d Dept., 1988), appeal denied, 72 NY2d 801 (1988); Matter of Anzalone, 9 DOS APP 08). There should be, however, “such factual presentation concerning acts or conduct by the licensee or his agent as would warrant a conclusion of unreliability, and which establishes that any confidence or reasonable expectation of fair dealing to the general public would be misplaced” (Gold v. Lomenzo, 29 NY2d at 477). It is well-settled that the deliberate failure to pay a judgment lawfully entered by a court of competent jurisdiction, without a showing of being financially unable to do so, is a demonstration of untrustworthiness by a real estate broker (see Feldman v. Dept. of State, 81 AD2d 553 (1^st Dept., 1981); Pasquariello v. DLS, 33 DOS APP 10; DLS v. Kalicharan, 9 DOS APP 04; DLS v. Vasquez, 15 DOS APP 04; DLS v. Statland, 170 DOS 10; DLS v. David, 394 DOS 10; DLS v. Sroka, 973 DOS 09; DLS v. Demmo, 661 DOS 09; DLS v. Poto, 433 DOS 09; DLS v. Sai Lee, 2249 DOS 07; DLS v. Shiamili, 670 DOS 07; DLS v. Bronx County Realty Corp., 20 DOS 07; DLS v. Ligon, 975 DOS 06; DLS v. Golan, 873 DOS 05; DLS v. Ardelean, 98 DOS 93)).

            “The real estate broker is brought by his calling into a relation of trust and confidence” and “demonstrated misconduct in disregard of law and public policy may be considered in determining untrustworthiness” (Roman v. Lobe, 243 NY 51, 54 (1926); Diona v. Lomenzo, 26 AD2d 473, 477 (1^st Dept., 1966)). The willful nonpayment of money judgments, where the judgment debtor is able to pay and does not manifest opposition to the validity of the judgment by taking an appeal, adversely affects the public interest in that the frustration of creditors’ efforts to collect on their judgments undermines the efficacy of money judgments as tools of justice in general, and serves as an indicium of untrustworthiness with regard to the judgment debtor (see Pasquariello v. DLS, 33 DOS APP 10). Likewise, a pattern of extensive delay or neglect with regard to court ordered judgments evidences a disregard for the rule of law, is contrary to public policy, and indicates a lack of financial responsibility. Such a situation is one in which the broker’s deliberate dilatory and neglectful practices indicate that he would not deal fairly with the public and, therefore, disciplinary action under section 441-c of the Real Property Law for having demonstrated untrustworthiness is warranted (see Matter of Dovale v. Patterson, 85 AD2d at 602).

            The record demonstrates that Appellant has four outstanding judgments against him that he has wilfully failed to satisfy, which were entered in 1997, 2000, 2005 and 2007 and reflect outstanding debts of at minimum approximately $10,000, $6,000, $5,000 and $299,998.03, respectively. Although Appellant claimed to have attempted to settle one of the debts, and appears to have made a partial payment (less than $4,000) of his original $30,599.27 judgment debt to Richard Gertler and had been subject to an enforcement action (see Gertler testimony, Transcript, 9/15/09, at pp. 11-18), no proof of satisfaction of the judgment was submitted at the administrative hearing and no evidence indicating that Appellant is unable to pay has been introduced. Further, there is no credible evidence showing that the aforementioned judgments are pending appeal or have been reopened, reversed, modified or vacated.

            Appellant has engaged in a pattern of delay and neglect with regard to the satisfaction of judgments entered against him. In addition, the record shows that Appellant served an improperly altered court order on a bank in an attempt to obtain the release of funds and shield his assets from the collection attempts of Mr. Gertler (State’s Ex. 4). Such evidence, taken together, supports the ALJ’s finding that “by failing to satisfy those judgments, one of which is over twelve years old, the [Appellant] has demonstrated untrustworthiness” (58 DOS 10).

V.        Permitting a salesperson to serve as manager of the brokerage office was a demonstration of untrustworthiness.

            At the administrative hearing below and on appeal, Appellant conceded that he violated 19 NYCRR § 175.20 by permitting a salesperson to act as manager of the Home Link Realty Corp. brokerage office in 2007 (State’s Ex. 2; State’s Ex. 11; Transcript, at p. 41; Appellant’s Memorandum of Appeal, at p. 15). It is impermissible for a broker to allow a real estate salesperson to operate a real estate brokerage business. With regard to this misconduct, the ALJ correctly concluded: “While the pertinent regulation in effect at the time (19 NYCRR § 175.20) made provision for such supervision of branch offices under certain circumstances, there is no evidence that the office that the Salesperson supervised was a branch office or that he otherwise fulfilled the requirements of the regulation ... by permitting a Real Estate Salesperson to act as manager of his office [Appellant] demonstrated incompetency and further demonstrated untrustworthiness” (58 DOS 10, at p. 3).

VI.      The penalty imposed by the ALJ was not disproportionate to the violations determined.

            Appellant contends that the penalty of license revocation imposed by the ALJ was unduly harsh. Sanctions imposed by an administrative tribunal must not be unduly harsh so as to “shock one’s sense of fairness” (see Pell v. Board of Educ., 34 NY2d 222, 233 (1974)). Pursuant to Real Property Law § 441-c(1), the Secretary of State may “revoke the license of a real estate broker ... if such licensee has ... has demonstrated untrustworthiness or incompetency to act as a real estate broker.” Revocation of a broker’s license has been imposed where a finding of untrustworthiness is made based upon the broker’s deliberate failure to satisfy judgments entered against him (see Matter of Statland, 170 DOS 10 (2010); Matter of O’Brien, 671 DOS 00 (2000)).

            Appellant has demonstrated a pattern of delay and neglect with regard to judgments lawfully entered against him, was found to have attempted to obtain the release of funds by serving an improper copy of a court order on a bank, and conceded that he violated Department of State regulations by improperly permitting a real estate salesperson to act as manager of his brokerage office. Further, the ALJ found that Appellant made “clear attempts in his testimony to mislead the Tribunal about the status of the judgments,” concluded that Appellant “has little regard for the truth,” and gave weight to those findings in determining an appropriate penalty to impose (58 DOS 10, at pp. 3–4). Giving deference and weight to the credibility findings of the ALJ (Matter of Posner, 37 DOS APP 09; Matter of Anzalone, 9 DOS APP 08 (2008); Matter of Roberts, 3 DOS APP 97; see also Simpson v. Wolansky, 38 NY2d 391, 394 (1975)) and considering the totality of the circumstances, the revocation of Appellant’s license as a real estate broker was neither unduly harsh nor an abuse of the ALJ’s discretion and should not be disturbed on appeal.

DETERMINATION

            The decision of the Administrative Law Judge is confirmed in its entirety.

So ordered on: August 2, 2010                       __________________________________________

                                                                                    Daniel E. Shapiro

                                                                                    First Deputy Secretary of State