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RICHARD E. SMITH v. JOHN P. LOMENZO (12/04/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


December 4, 1969

RICHARD E. SMITH, SR., PETITIONER,
v.
JOHN P. LOMENZO, AS SECRETARY OF STATE, RESPONDENT

Review of determination suspending real estate license, transferred by order of Erie Special Term.

Del Vecchio, J. P., Marsh, Gabrielli, Moule and Bastow, JJ.

Memorandum: Petitioner's real estate broker's license has been suspended under section 442-c of the Real Property Law, which imposes responsibility upon a broker for a statutory violation by a salesman if the broker has actual knowledge of the violation or retains the benefits, profits or proceeds of a transaction wrongfully negotiated by his salesman after notice of the salesman's misconduct. The hearing officer made a finding that actual knowledge by petitioner of his salesman's wrongdoing had not been established. Although there was a finding that petitioner had retained commissions on the rental of the premises with respect to which the alleged discrimination occurred, there was no finding that the retention was with notice of the salesman's misconduct. The record in fact is insufficient to establish that petitioner retained the benefits, profits or proceeds of a transaction wrongfully negotiated by his salesman after notice of his salesman's misconduct within the meaning of section 442-c of the Real Property Law, such that responsibility could be imposed on the broker under that section.

Disposition

Determination unanimously annulled, with $50 costs.

19691204

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