Mulford v. ShafferMulford v. Shaffer
Thе instant matter was initially brought before respondent, the Secretary of State, under Real Property Law § 441-c as a result of a complaint made against petitioner by the co-owner of about 20 acres of land in the Town of Lenоx, Madison County, which petitioner undertook to sell as a cobroker. The complainant had signed an exclusive listing of the property at $14,000 with another broker containing a provision for a 7% commission. Petitioner presented, and had the complainant accept and sign, a purchase offer which was expressly contingent upon the buyer’s аbility to construct multifamily housing on the property to be financed by the Farmers’ Home Administration. The purchase offer required a $100 deposit and provided for a 10% commission to petitioner on the sale. After a delay of more than six months, petitioner presented a second purchase offer from the same prospective buyer, which the complainant also signed. That instrument contained the same contingency clause. However, it reduced the deposit to $1 and also provided for the payment of $350 by the buyer to defray the seller’s expenses for keeping the рroperty off the market for six months, and for a further six-month extension of his right to purchase upon payment of an additional $350. The complainant testified at the hearing that, at petitioner’s request, she gave him $100 of the initial $350 she receivеd from the buyer when the second purchase offer was accepted. Further delays ensued, during which the complаinant retained an attorney. Ultimately, after legal disputes between the complainant and the buyer over the binding еffect of the second purchase offer which she alone signed, the sale was consummated at a reduced price.
The substance of the complaint made against petitioner was that he unilaterally and without exprеssly informing the complainant increased the commission rate in the first purchase offer, reduced the amount of thе deposit payable under the second offer and had extracted a fee of $100 from her at the time of the second offer for his "paper work” and other office expenses. Petitioner was subsequently served with a
After an evidentiary hearing, the Hearing Officer determined that petitioner had engaged in conduct demonstrating his "untrustworthiness and incompetencе” to act as a real estate broker (see, Real Property Law § 441-c) by engaging in the unlawful practice of law in violation of
Petitioner raises two grounds for annulment. The first is that thе complaint affidavit did not expressly charge him with engaging in the unlawful practice of law and, hence, was inadequate notice of the offense for which he was punished. We disagree. The formal charge was of untrustworthiness and incоmpetency to act as a broker, one of several grounds for the imposition of licensure sanctions set fоrth in the statute (Real Property Law § 441-c). This ground has been upheld against objections of vagueness (Matter of Gold v Lomenzo,
Petitioner alternatively arguеs that the evidence was insufficient to support a finding that he engaged in the unlawful practice of law. The record indicates that the contingency clause of the first purchase offer was inserted because of the need tо effect a zoning change for the buyer’s intended development of the property. The clause drafted by petitioner, however, broadly excused the buyer’s performance if "for any reason” he was unable to construct аnd obtain financing for multifamily housing. Thus, despite its brevity, the clause was
Finally, we do not find that imposition of the alternative sanctions of a period of license suspension or restitution and a fine of $500 to be unduly severe.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.