STATE OF NEW YORK
DEPARTMENT OF STATE
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In the matter of
DEPARTMENT OF STATE,
DIVISION OF LICENSING SERVICES,
DECISION ON REQUEST
FOR EXTENSION OF TIME AND FOR A STAY
-against-
38 DOS APP 07
JUSTIN J. FLETCHER,
Respondent.
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On November 2, 2007, Administrative Law Judge (ALJ) Scott NeJame rendered a decision (2028 DOS 07) granting the application of Respondent, Justin J. Fletcher, for licensure as a real estate appraiser assistant.
On November 29, 2007, the Appellant, Division of Licensing Services, submitted a notice of appeal to the Secretary, advising it will seek to vacate the ALJ’s decision and to revoke the Respondent’s license.
Appellant has requested a 30 day extension of time to perfect the appeal from the date of the receipt of the transcript by DLS. Appellant stated that a copy of the transcript of the hearing held in Binghamton, New York on October 23, 2007 has not been delivered to the Office of Administrative Hearings and therefore is unavailable to the parties. The extension is sought in order to allow Appellant an opportunity to evaluate the record and prepare the necessary briefs and appellate documents needed to perfect this appeal. The request for an extension is granted.
Appellant also asks that the decision issued by the tribunal be stayed for a period up to thirty (30) days. By staying the decision below, Appellant would not be permitted to remain licensed during the pendency of the appeal.
Title 19, Chapter XI, Part 400.2(l) of the NYCRR sets forth the procedure for a party to apply to the Secretary of State for a stay “[f]ollowing the administrative law judge's decision, and pending the filing of an appeal therefrom”. The motion for a stay in section 400.2 (l) allows a stay to be issued during the interim period before the appeal is perfected. (Division of Licensing Services v. Borkan, 20 DOS APP. 07; Division of Licensing Services v. Eddie Hugo Rossi and Roseland Realty, 08 DOS APP 07). The stay application must be in writing and based on evidence contained in the record. The Secretary may grant the stay and reserve decision on appeal, or may deny the appeal and either reach a decision on the merits of the appeal or reserve such a decision. (Division of Licensing Services v. Stockman, 1 DOS APP. 04)
The Secretary of State has set forth factors to be considered in determining whether or not to grant a stay pending an appeal (Division of Licensing Services v. Liberty Auction Properties Ltd. and Dorothy A. Nicklus, 9 DOS APP 02). Factors to be considered include the likelihood of Appellant’s success on the merits, and the likelihood or ease by which the Department could rescind Respondent’s license as a real estate appraiser assistant in the event that the Secretary concludes it was improvidently granted.
Since Appellant has not yet stated the basis for the appeal nor alleged any factual deficiencies or incorrect legal conclusions in the decision below, it is unclear at this point whether Appellant will be successful on the merits. Appellant has not cited any reason on
which to grant the application for a stay. It is not possible, based on Appellant’s notice of appeal alone and without resort to the documentary evidence, to conclude that this determination was incorrect.
The Secretary has broad discretion to grant or deny stays in the interest of fairness and proper enforcement of the law. If, after the appeal, the Secretary decides to deny the license, the State is well positioned to enforce that decision. In the instant case, Appellant has not made out an equitable case for issuing a stay.
DETERMINATION
Appellant’s motion for a 30 day extension of time to perfect the appeal from the date of the receipt of the transcript is granted. Appellant’s motion a stay pending of the decision below pending the outcome of appeal is denied.
So ordered on:
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Daniel E. Shapiro, Esq.
First Deputy Secretary of State