183 DOS 06
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-
WAYNE J. CALVELO,
Respondent.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on March 28, 2006 at the office of the Department of State located at 123 William Street, New York, New York.
The respondent did not appear.
The complainant was represented by Amy van den Broek, Esq.
COMPLAINT
The complaint alleges that respondent licensed real estate appraiser failed to prepare an appraisal for which he was paid, failed to respond to correspondence and messages from his client asking for the appraisal report, has failed to refund the unearned fee, and failed to cooperate with the complainant’s investigation.
FINDINGS OF FACT
1) Notices of hearing together with copies of the complaint addressed to the respondent at his business address filed with the complainant were posted by certified mail on January 12 and March 3, 2006. Both mailings were returned marked “attempted not known” (State’s Ex. 1, 2 and 3).
2) Since at least August 22, 2002 the respondent has been licensed as a residential real estate appraiser with a licensed business address of 28 Armstrong Street, Brentwood, New York 11717 (State’s Ex. 4).
3) On March 22, 2006 the respondent accepted $1000.00 from Susan Mills to prepare an appraisal of property located in Point Lookout, New York which she was purchasing. Although he inspected the property he did not provide Ms. Mills with an appraisal report, and he has not responded to her voice mail and fax message inquiring as to the status of the report. His inaction resulted in the postponement of the closing (State’s Ex. 6).
4) The complainant’s investigator wrote to the respondent, at the unlicensed address on the receipt given to Ms. Mills, by certified and regular mail on June 1, 2005 and directed him to appear on June 8, 2005 to discuss Ms. Mills’ complaint. The certified mail was returned marked “unclaimed.” The uncertified mail was not returned. The respondent did not appear. A second such letter, with a direction to appear on July 19, 2005, was sent to the respondent, again by certified and regular mail, on July 12, 2005. The certified mail was again returned unclaimed, and the regular mail was not returned. Once again, the respondent did not appear (State’s Ex. 6).
OPINION AND CONCLUSIONS OF LAW
I- The holding of an ex parte quasi-judicial administrative hearing was permissible, inasmuch as there is evidence that notice of the place, time and purpose of the hearing was properly served. Patterson v Department of State, 36 AD2d 616, 312 NYS2d 300 (1970);Roy Staley v Division of Licensing Services, 14 DOS App 01; Matter of the Application of Rose Ann Weis, 118 DOS 93.
II- The respondent accepted $1000.00 to perform an appraisal but failed to provide his client with a report of that appraisal, even after she left him numerous messages inquiring as to its whereabouts. His failure to communicate that appraisal to his client caused her to have to adjourn the closing of her purchase of the property, and was a violation of Executive Law §160-u[1][g].
III- Where a licensee has received money to which he is not entitled, he may be required to return it, together with interest, as a condition of retention of his license. Donati v Shaffer, 83 NY2d 828, 611 NYS2d 495 (1994); Kostika v Cuomo, 41 N.Y.2d 673, 394 N.Y.S.2d 862 (1977); Zelik v Secretary of State, 168 AD2d 215, 562 NYS2d 101 (1990); Edelstein v Department of State, 16 A.D.2d 764, 227 N.Y.S.2d 987 (1962).
IV- The complainant alleges that by failing to cooperate with its investigation the respondent further violated Executive Law §160-u. It has not, however, provided any evidence to establish that the respondent was aware of its directives to appear at the complainant’s office. Its investigator sent two letters to the respondent at an unlicensed address. The letters sent by certified mail were returned unclaimed, and there is no evidence that the uncertified letters were delivered or that any effort was made to contact the respondent at his licensed address. I find, therefore, that the complainant has failed to meet its burden of proving by substantial evidence the respondent’s alleged non-cooperation and that the charge of non-cooperation should be, and is, dismissed.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Wayne J. Calvelo has violated Executive Law §160-u[1][g], and accordingly, pursuant to Executive Law §160-u[1], the license of Wayne J. Calvelo as a residential real estate appraiser, UID #47000039418, is suspended for a period commencing on May 1, 2006 and terminating six months after the receipt by the Department of State of his license certificate and pocket card and then until he shall have produced proof satisfactory to the Department of State that he refunded the sum of $1000.00 plus interest at the legal rate for judgements (currently 9% per year) from March 22, 2005, to Susan Mills. He is directed to send his license certificate and pocket card to Lisa De Jesus, Customer Service Unit, Department of State, Division of Licensing Services, 84 Holland Avenue, Albany, NY 12208.
Roger Schneier
Administrative Law Judge
Dated: March 29, 2006