Grimm v. Department of State

56 A.D.2d 591, 391 N.Y.S.2d 647, 1977 N.Y. App. Div. LEXIS 10655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1977
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Secretary of State, dated October 24, 1974, which, after a hearing, found that petitioners, licensed real estate brokers, were guilty of untrustworthiness and suspended their licenses for six months or, in lieu thereof, fined each of them $250. Petition granted, determination annulled, on the law, without costs or disbursements, and the charges against petitioners are dismissed and the fines imposed are remitted, without prejudice to the institution of a new proceeding against petitioners, if respondent be so advised. Petitioners did not have adequate notice of the charges against them. Where the charge is one of untrustworthiness, it must be made clear and definite so that the accused may know what he is to defend against (see Partridge v Lomenzo, 37 AD2d 180, 183). Petitioners were charged with knowing that one of the brokers working for them conspired with a Ms. Cannon to have her purchase a house as a "dummy mortgagor” for a friend of hers, and with advising said Ms. Cannon that it was not necessary for her to obtain legal counsel. The proof at the hearing did not establish any of those charges, but did establish that petitioners acted in the dual capacity of brokers and sellers without adequately disclosing that fact to Ms. Cannon. Based upon that nondisclosure, and upon a failure to protect Ms. Cannon against their superior knowledge and expertise, a finding of untrustworthiness was made. Since petitioners did not have adequate notice of those charges, the finding of untrustworthiness cannot stand. Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.