Apostol v. Department of State

Appellate Division of the Supreme Court of New York

Apostol v. Department of State

23 A.D.2d 845, 259 N.Y.S.2d 911, 1965 N.Y. App. Div. LEXIS 4127

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 1965

StatusPublished

Cited by1 cases

This text of 23 A.D.2d 845 (Apostol v. Department of State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Apostol v. Department of State, 23 A.D.2d 845, 259 N.Y.S.2d 911, 1965 N.Y. App. Div. LEXIS 4127 (N.Y. Ct. App. 1965).

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Opinion

Determination of respondent Department and Secretary of State, dated December 31, 1964, revoking the real estate broker’s license of petitioner Apostol as representative of Midway Realty, Inc., revoking the real estate salesman’s license of petitioner Houlios, and suspending for two weeks the real estate broker’s license of petitioner Canariek as representative of Midway Realty, Inc., unanimously annulled, on the law, as to petitioner Canariek and is otherwise confirmed, with $30 costs and disbursements to petitioner Canariek against respondents, and with $30 costs and disbursements to respondents against petitioners Apostol and Houlios. The hearing officer’s finding that petitioners Apostol and Houlios had participated in a calculated plan to perpetrate a fraud upon a lending institution by creating the appearance of a substantial down payment on the purchase of real estate, when most of the down payment was in fact fictitious was supported by substantial evidence. The documents showing the existence of the fraudulent transaction were admitted in evidence. The prospective purchaser testified that Apostol and Houlios were present when the details of the transaction relating to the fictitious down payment were explained to him. Canariek was not present, however, and the hearing officer found insufficient evidence that Canariek had participated in or had actual knowledge of the fraudulent transaction. In the absence of participation in or of actual knowledge of the transaction or retention of its benefits his license should not have been suspended (Real Property Law, § 442-c). Since Apostol and Houlios did not make use of Canariek’s license in perpetrating the fraud the case is unlike Matter of Solk v. Department of State (286 App. Div. 178), where the court found that the licensee had sat idly by for a considerable period of time while the improper acts were committed. One can only speculate that Canariek probably knew of what his close associates were doing or did but speculation alone is no substitute for evidence. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Determination of respondent Department and Secretary of State, dated December 31, 1964, revoking the real estate broker’s license of petitioner Apostol as representative of Midway Realty, Inc., revoking the real estate salesman’s license of petitioner Houlios, and suspending for two weeks the real estate broker’s license of petitioner Canariek as representative of Midway Realty, Inc., unanimously annulled, on the law, as to petitioner Canariek and is otherwise confirmed, with $30 costs and disbursements to petitioner Canariek against respondents, and with $30 costs and disbursements to respondents against petitioners Apostol and Houlios. The hearing officer’s finding that petitioners Apostol and Houlios had participated in a calculated plan to perpetrate a fraud upon a lending institution by creating the appearance of a substantial down payment on the purchase of real estate, when most of the down payment was in fact fictitious was supported by substantial evidence. The documents showing the existence of the fraudulent transaction were admitted in evidence. The prospective purchaser testified that Apostol and Houlios were present when the details of the transaction relating to the fictitious down payment were explained to him. Canariek was not present, however, and the hearing officer found insufficient evidence that Canariek had participated in or had actual knowledge of the fraudulent transaction. In the absence of participation in or of actual knowledge of the transaction or retention of its benefits his license should not have been suspended (Real Property Law, § 442-c). Since Apostol and Houlios did not make use of Canariek’s license in perpetrating the fraud the case is unlike Matter of Solk v. Department of State (286 App. Div. 178), where the court found that the licensee had sat idly by for a considerable period of time while the improper acts were committed. One can only speculate that Canariek probably knew of what his close associates were doing or did but speculation alone is no substitute for evidence. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

23 A.D.2d 845, 259 N.Y.S.2d 911, 1965 N.Y. App. Div. LEXIS 4127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apostol-v-department-of-state-nyappdiv-1965.

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