61 DOS 97
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Complainant,
-against-
SETH ROBERTS,
Respondent.
----------------------------------------X
DECISION
----------------------------------------X
The above noted matter came on for hearing before the
undersigned, Roger Schneier, on March 11, 1997 at the office of the
Department of State located at 270 Broadway, New York, New York.
The respondent, of 32 Carriage Road, Great Neck, New York
11024, was represented by Lewis Fidler, Esq., 370 7th Avenue, Suite
312, New York, New York 10001.
The complainant was represented by Assistant Litigation
Counsel Scott L. NeJame, Esq.
COMPLAINT
The complaint alleges that the respondent, a notary public,
notarized four documents without the affiant appearing before him
or acknowledging her signatures, charged an excessive fee for the
notarizations ($40.00), and that his customary practice is to
charge $10.00 for each notarization that he performs.
FINDINGS OF FACT
1) Notice of hearing together with a copy of the complaint was
served on the respondent by certified mail on February 4, 1997
(State's Ex. 1).
2) The respondent is, and at all times hereinafter mentioned
was, duly commissioned as a notary public (State's Ex. 2). He is
also an attorney at law, with an office located at 370 7th Avenue,
Suite 312, New York, New York 10001.
1. Each set of documents consisted of a document in Italian,
Ms. Zollo's translation of that document, and Ms. Zollo's
certification of the translation.
2. I do not find credible the respondent's testimony that he
spoke with Ms. Zollo, administered an oath to her, and certified
additional documents to be submitted by her to the Immigration and
Naturalization Service. His testimony was contradicted by the
highly credible testimony of Ms. Zollo, for whom no motive to lie
was even suggested, and by statements which he made to the
complainant's investigator.
In addition, I have drawn a negative inference from the
respondent's failure to call Ms. Garcia as a witness. Ms. Garcia
was present during the transaction with Ms. Zollo, and is still in
his employ. 57 NYJur2d, Evidence and Witnesses §127.
3) On November 7, 1994 Daniela Zollo (now Daniela Tejerina)
was seeking to have her certifications of her translations of
certain documents relating to her education notarized. She
enquired about the presence of a notary in a copy store, and was
directed upstairs to the respondent's law office.
4) Ms. Zollo went to the respondent's office, where she spoke
with Miriam Garcia, the respondent's secretary. Ms. Zollo told Ms.
Garcia that she needed the documents notarized, and showed Ms.
Garcia her passport (State's Ex. 5) as identification. Ms. Garcia
took Ms. Zollo's four sets of documents1 into a back office, where
the respondent notarized the certifications (which Ms. Zollo had
previously prepared and affixed) with the statement "(s)worn to
before me this 7th day of November, 1994" (State's Ex. 3).
5) At no time did Ms. Zollo see or speak with the respondent.
She did not acknowledge her signatures on the certifications, which
may have been affixed either before or after the notarizations, and
no oath was administered to her.
6) Ms. Zollo was charged $40.00 for the four notarizations
(State's Ex. 4).2
OPINION
I- So long as the issue has been fully litigated by the
parties, and is closely enough related to the stated charges that
there is no surprise or prejudice to the respondent, the pleadings
may be amended to conform to the proof and encompass a charge which
was not stated in the complaint. This may be done even without a
formal motion being made by the complainant. Helman v Dixon, 71
Misc.2d 1057, 338 NYS2d 139 (Civil Ct. NY County, 1972). In ruling
on the motion, the tribunal must determine that had the charge in
question been stated in the complaint no additional evidence would
have been forthcoming. Tollin v Elleby, 77 Misc.2d 708, 354 NYS2d
856 (Civil Ct. NY County, 1974). What is essential is that the
"matters were raised in the proof, were actually litigated by the
parties and were within the broad framework of the original
pleadings." Cooper v Morin, 91 Misc.2d 302, 398 NYS2d 36, 46
(Supreme Ct. Monroe County, 1977), mod. on other grnds. 64 AD2d
130, 409 NYS2d 30 (1978), aff'd. 49 NY2d 69, 424 NYS2d 168 (1979).
The complaint charges that the respondent notarized the
documents without Ms. Zollo appearing before him and acknowledging
her signatures. The evidence, however, establishes that the
documents were not acknowledged but, rather, were purportedly sworn
to although no oath was administered to Ms. Zollo. That issue,
which is closely related to the issues of the respondent's not
appearing before the respondent and not having acknowledged her
signature, was fully litigated without objection by the respondent,
and, therefore, the complaint is amended to include a charge that
the respondent failed to administer an oath to Ms. Zollo.
II- A notary public is a public officer who acts under an oath
of office. Public Officers Law §§5, 8, and 10; Executive Law §131;
People v Rathbone, 145 NY 436 (1895); Patterson v Department of
State, 35 AD2d 616, 312 NYS2d 300 (1970). "The general presumption
is that no official or person acting under an oath of office will
do anything contrary to his official duty...." Matter of Marcellus,
165 NY 70, 77 (1900).
"In notarizing a document which contains a jurat that states
'sworn to before me' a notary attests to the fact that he has
administered an oath. The purpose of the oath is to impress on the
affiant the necessity for absolute and uncompromising truth,
O'Reilly v People, 86 NY 154 (1881), and the failure of a notary
public to administer the oath thwarts that purpose." Division of
Licensing Services v Kulesa, 13 DOS 91. Thus, where a notary
indicates falsely that he has administered an oath, he engages in
an act of misconduct constituting fraud and deceit. Bloom v Power,
21 Misc.2d 885 (1959), 193 NYS2d 697, aff'd. 9 AD2d 626, 191 NYS2d
152, aff'd. 6 NY 2d 1001, 192 NYS2d 162.
III- Pursuant to Executive Law §136, a notary public is
entitled to a fee of $2.00 for administering an oath or affirmation
and certifying same. Overcharging by a notary has consistently
been held to be a serious act of misconduct. Division of Licensing
Services v Kulesa, supra; Department of State v Post, 39 DOS 90;
Department of State v Haimowitz, 16 DOS 90; Department of State v
Goldring, 27 DOS 88; Department of State v Zimmer, 35 DOS 87. In
this case, the respondent charged five times the legal fee for four
notarizations.
IV- The respondent's misconduct is particularly troubling
because of his status as an attorney, which leads to the conclusion
that he must have been aware of the improper and unlawful nature of
his acts. The apparent untruthfulness of his sworn testimony
during these proceedings makes that misconduct all the more
egregious, and warrants the imposition of the severest of
penalties. United States v Dunnigan, 113 S.Ct. 1111 (1993).
CONCLUSIONS OF LAW
1) By reason of his having notarized four documents with the
untrue statement that they were sworn to before him the respondent
is guilty of misconduct as a notary public.
2) By charging $10.00 each for four notarizations the
respondent violated Executive Law §136, and by reason of those
violations the respondent is guilty of misconduct as a notary
public.
3) The complainant has failed to establish by substantial
evidence that the respondent customarily charges $10.00 for each
notarization he performs, and that charge should, therefore, be,
and is, dismissed. State Administrative Procedure Act §306[1].
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Seth Roberts has
engaged in acts of misconduct as a notary public. Accordingly,
pursuant to Executive Law §130, his commission as a notary public
is revoked, effective immediately, and he is directed to
immediately send his notary public identification card to Thomas F.
McGrath, Revenue Unit, Department of State, Division of Licensing
Services, 84 Holland Avenue, Albany, NY 12208.
Roger Schneier
Administrative Law Judge
Dated: March 13, 1997