Vincent v. Department of State

40 A.D.2d 612, 335 N.Y.S.2d 917, 1972 N.Y. App. Div. LEXIS 3889

Opinion

Proceeding pursuant to article 78 of the CPLR to review respondents’ determination, dated January 3, 1972, which, after a hearing, (1) adjudged petitioners guilty of demonstrated untrustworthiness and (2) suspended their real estate brokerage licenses until payment by them of a commission allegedly owed by them to a real estate salesman formerly in their employ. Determination annulled, on the law, without costs. The finding that petitioners had “ demonstrated unworthiness” is not supported by substantial evidence. There was a genuine dispute between petitioners and the complainant as to whether the latter was entitled to share in a commission. Petitioners’ honest belief that no commission was due precludes a finding of untrustworthiness (see Matter of Kreitsek v. Department of State, 28 A D 2d 721). There was no factual presentation of acts committed by petitioners to warrant a conclusion of unreliability or to establish that any reasonable expectation of fair dealing with the general public would be misplaced (cf. Matter of Chiaino v. Lomenzo, 26 A D 2d 469, 472; Matter of Birch v. Lomenzo, 31 A D 2d 835). Martuscello, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.