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MATTER HARRY O'DONNELL v. JOHN P. LOMENZO (06/27/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


June 27, 1969

IN THE MATTER OF HARRY O'DONNELL, PETITIONER,
v.
JOHN P. LOMENZO, AS SECRETARY OF STATE, RESPONDENT

Del Vecchio, J. P., Witmer, Gabrielli, Bastow and Henry, JJ.

Memorandum: There was substantial evidence to support respondent's determination of "untrustworthiness" on the part of petitioner under subdivision 1 of section 441-c of the Real Property Law and subdivisions 5 and 6 of section 296 of the Executive Law (Matter of Diona v. Lomenzo, 26 A.D.2d 473; cf. Matter of Chiaino v. Lomenzo, 26 A.D.2d 469; Matter of Birch v. Lomenzo, 31 A.D.2d 835). In the light of the petitioner's hitherto unblemished record, however, and the evidence of his co-operative attitude with respect to complainant, we believe the punishment was excessive and that suspension for three months is more appropriate in this case (see Matter of Kamper v. Department of State, 26 A.D.2d 697, affd. 22 N.Y.2d 690; Matter of Black v. Lomenzo, 31 A.D.2d 908; Matter of Birch v. Lomenzo, supra). (Review of determination revoking petitioner's broker's license, transferred by order of Erie Special Term.)

Disposition

Determination unanimously modified on the law and facts and in the exercise of discretion by reducing the punishment to suspension of license for three months, commencing from the date of the order to be entered hereon, and as modified confirmed, without costs.

19690627

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