Skalky v. Department of State of New York

83 A.D.2d 848, 441 N.Y.S.2d 748, 1981 N.Y. App. Div. LEXIS 15230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 1981
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination by the respondent Department of State of the State of New York, dated November 24, 1980, which, after a hearing, found that petitioner, a licensed real estate broker, had demonstrated untrustworthiness and, pursuant to section 441-c of the Real Property Law, suspended his license for a period of two months. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. There is substantial evidence in the record to support the finding that petitioner demonstrated untrustworthiness with respect to the transaction which was the subject of the disciplinary proceeding. Further, the penalty imposed was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (see Matter of Butterly & Green v Lomenzo, 36 NY2d 250; Matter of Pell v Board of Educ., 34 NY2d 222). While confirming the determination, we note that it was improper for the hearing officer to take “judicial notice” of an earlier decision of the Professional Standards Committee of the Long Island Board of Realtors, Inc., which found petitioner guilty of a violation of the Code of Ethics of the National Association of Realtors for his actions in regard to the transaction considered at the instant hearing (State Administrative Procedure Act, §306, subd 4). However, under the circumstances, we find that such action by the hearing officer does not require a new hearing, since the evidence at the hearing was sufficient to support respondent’s determination. Hopkins, J.P., Mangano, Hargett and Thompson, JJ., concur.