623 DOS 09
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Complainant, DECISION
-against-
ALLISON J. RAM,
Respondent.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on December 3, 2008 at the office of the Department of State located at 123 William Street, New York, New York. The respondent did not appear and on December 10, 2008 a decision revoking her license as a Residential Real Estate Appraiser was issued (1514 DOS 08). The respondent appealed to the Secretary of State, and by decision dated March 6, 2009 (08 DOS APP 09) the matter was remanded for additional proceedings. Accordingly, the matter came on again on May 20, 2009, at which time the respondent was present and was represented by Cathleen Quinn Nolan, Esq., 145 Marcus Boulevard, Suite 4, Hauppauge, NY 11788.
The complainant was represented by David Mossberg, Esq..
COMPLAINT
The complaints allege that the respondent prepared and communicated an appraisal report which was misleading and contained violations of the applicable standards, failed to notify the Department of State of the change of her principal address, and failed to cooperate with the complainant’s investigation.
FINDINGS OF FACT
1) Notices of hearing together with a copies of the complaints were served by certified mail posted on May 5, 2008 and addressed to the respondent at both her last known business address as it appears in the records of the Department of State and her address as it appears on the billing invoice for the subject appraisal and on a label giving a forwarding address affixed by the Postal Service to prior mailings. The May 5, 2008 mailings were returned by the Postal Service marked “attempted not known.” A notice and complaint addressed to the address in the Department of State records was re-posted by certified mail on May 27, 2008 and was returned marked “not deliverable as addressed - unable to forward.” The mailing was re-posted to the same address by regular first class mail on June 9, 2008. That re-mailing was also returned marked “not deliverable as addressed - unable to forward” (State’s Ex. 1 and 2).
2) The respondent is, and at all times hereinafter mentioned was, duly licensed as a Residential Real Estate Appraiser (State’s Ex. 3).
3) On or about May 5, 2006 an appraisal for residential real property located at 55 Dubois Road, West Islip, New York was prepared bearing the electronic signature of the respondent (State’s Ex. 4). A review by the complainant’s Regional Appraisal Advisor disclosed that the appraisal overvalued the property by $60,000.00, improperly reported the zoning classification of the property, wrongly indicated that the property was not connected to a sewer, improperly described the properties used as comparables and failed to use superior comparables that were available, and improperly failed to report a sale of the subject property which had occurred within the preceding three years (State’s Ex. 6). The appraisal was not in fact prepared by the respondent. Rather, an Appraiser Assistant who had worked under her tutelage and who had access to her software, including her electronic signature, had prepared the report entirely without the knowledge or permission of the respondent.
4) By letter dated August 2, 2007 addressed to the respondent at her business address as it appears in the records of the Department of State and sent by both certified and regular first class mail the respondent was requested to respond to the findings of the Regional Appraisal Advisor. The mailings were both returned by the Postal Service marked “forward time exp rtn to send” and with a forwarding address. On October 22, 2008 the letter was re-mailed to the forwarding address, again by both certified and regular first class mail, and those mailings were returned by the Postal Service marked “moved left no address unable to forward.” On December 7, 2007 an audit letter regarding compliance with the continuing education requirements was mailed to the respondent at her address of record with the Department of State. That mailing was returned by the Postal Service marked “forward time exp rtn to send” and with the forwarding address. Finally, on January 30, 2008 an offer to settle the matter was sent to the respondent by regular first class mail addressed to her at her address of record. That letter was returned marked “not deliverable as addressed unable to forward” (State’s Ex. 5).
OPINION AND CONCLUSIONS OF LAW
I- There is no dispute as to whether appraisal report violated the Uniform Standards of Professional Appraisal Practice (USPAP) Rules 1-1, 1-5 and 2-1. However the respondent has now presented convincing evidence that she had nothing to do with that report and, having heard and observed her testimony I find her denial of involvement with the appraisal to be highly credible. Therefore, the charge that the respondent prepared and communicated an appraisal report which was misleading and contained violations of the applicable standards is dismissed.
II- Pursuant to Executive Law §160-q a licensed Real Estate Appraiser is required to notify the Department of State of any change of his or her address. As affirmed in the decision on appeal, the respondent violated that statute. In setting the penalty for the violation I have considered that there is no evidence that the respondent has ever acted improperly in the preparation of appraisals, as well as her testimony as to how the forgeries of the subject appraisal and one other have badly damaged her business. The statute provides only for the suspension or revocation of an Appraiser’s license upon a finding that he or she has violated any of its provisions, although it cryptically states that a licensee “may be otherwise disciplined in accordance with the provisions of this article” (Executive Law §160-u[1]) without stating anywhere what alternative there is to suspension or revocation, and certainly without setting any standards for fines. I find, therefore, that only a reprimand is warranted.
III- The respondent is charged with failing to cooperate with the complainant’s investigation by failing to reply to the complainant’s letters. However, those letters were not delivered. Therefore, the charge of non-cooperation is dismissed.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Allison J. Ram has violated Executive Law §160-q, and, accordingly, pursuant to Executive Law §160-u, she is reprimanded therefore.
Roger Schneier
Administrative Law Judge
Dated: June 2, 2009