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MATTER GEORGE LEVINE v. JOHN P. LOMENZO (05/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 19, 1969

IN THE MATTER OF GEORGE LEVINE, PETITIONER,
v.
JOHN P. LOMENZO, AS SECRETARY OF STATE OF THE STATE OF NEW YORK, ET AL., RESPONDENTS

Proceeding pursuant to article 78 of the CPLR to review and annul a determination of the respondent Secretary of State of the State of New York, dated June 24, 1968 and made after a hearing, which revoked petitioner's real estate salesman's license for "untrustworthiness" under section 441-c of the Real Property Law.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

The revocation of petitioner's license was based on a finding of "demonstrated untrustworthiness" to act as a real estate salesman (Real Property Law, ยง 441-c, subd. 1). Petitioner was found guilty of having discriminated in refusing to offer apartment listings to persons of the Negro race, by reason of their color. In our opinion the administrative determination was not supported by the requisite substantial evidence (Matter of Holland v. Edwards, 307 N. Y. 38, 44). The hearing officer found that two apartment listings which had been offered by petitioner to a white couple were shortly thereafter denied by him to a Negro couple who asked for listings in the same area. In our view, the record does not establish that the respective couples requested listings in the same geographic area. Furthermore, petitioner did offer the Negro couple the only listing he had for the precise geographic area they requested, notwithstanding that the apartment was in a "white" apartment house in a "white" neighborhood. Upon the record as a whole, the finding of "untrustworthiness" is not supported by substantial evidence.

Disposition

Determination annulled, on the law, with costs, and charges dismissed.

19690519

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