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MATTER PHYLLIS TOBEY v. DEPARTMENT STATE STATE NEW YORK ET AL. (10/09/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 9, 1969

IN THE MATTER OF PHYLLIS TOBEY, PETITIONER,
v.
DEPARTMENT OF STATE OF THE STATE OF NEW YORK ET AL., RESPONDENTS

Concur -- Stevens, P. J., Tilzer, McGivern, McNally and Macken, JJ.

The determination finding petitioner guilty of untrustworthiness is supported by substantial evidence. However, under the facts and circumstances here present we deem the penalty too severe and disproportionate to the offense, and conclude that a suspension for the period indicated is more appropriate (Matter of Black v. Lomenzo, 31 A.D.2d 908; Matter of Bovino v. Scott, 22 N.Y.2d 214; CPLR 7803, subd. 3; 7806).

Disposition

Determination suspending petitioner's license as a real estate salesman for a period of six months commencing February 10, 1969, for untrustworthiness (Real Property Law, ยง 441-c, subd. 1) unanimously modified, on the law and in the exercise of discretion, to the extent of reducing the penalty imposed to a period of suspension effective February 10, 1969 to and including May 7, 1969. As so modified, respondent's determination is otherwise confirmed, without costs and without disbursements to either party.

19691009

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