Gold v. Lomenzo

• Decision Date: 29 December 1970
• Citation: 35 A.D.2d 1054,316 N.Y.S.2d 830
• Parties: In the Matter of David C. GOLD, Appellant, v. John P. LOMENZO, as Secretary of State of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 830

316 N.Y.S.2d 830

35 A.D.2d 1054

In the Matter of David C. GOLD, Appellant, v. John P. LOMENZO, as Secretary of State of the State of New York, et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Dec. 29, 1970.

Norman J. Mordkofsky, New York City (Emanuel Thebner, New York City, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Winifred C. Stanley, Albany, of counsel), for respondents.

Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered March 9, 1970 in Albany County, which dismissed petitioner's application, in a proceeding under CPLR article 78, to vacate an order of the Secretary of State made after a hearing, which suspended petitioner's real estate broker's license.

The appeal from the order of suspension entered July 24, 1969, is academic, because such order has been superseded by a subsequent order of the Secretary of State which revoked petitioner's license (cf. Matter of Daub v. Board of Regents of Univ. of State of N.Y., 33 A.D.2d 964, 306 N.Y.S.2d 869; 24 Carmody-Wait 2d, New York Practice, § 145.343). The briefs of the parties and the Secretary of State's answer to the petition disclose that on October 31, 1969, an order was entered revoking petitioner's license for acting as a real estate broker during the suspension of his license. The Secretary's order which revoked petitioner's license is not properly before this court, since such order and other necessary items are not contained in the record on appeal (CPLR 5526; cf., Bennett Excavators Corp. v. Lasker-Goldman Corp., 11 A.D.2d 734, 204 N.Y.S.2d 706).

In any event, were the order of suspension properly before us, we would confirm it except as to the condition limiting the fees petitioner could charge in future transactions.

Respondents found that petitioner, along with three of his salesmen, had 'demonstrated untrustworthiness' because of excessive and improper amounts charged for locating apartments. It was found that the fees charged were unrelated to services rendered and greatly in excess of those set forth in Bronx Real Estate Board guidelines. The order complained of suspended petitioner's license as a real estate broker for three months, or in lieu thereof required payment of a $250 fine, and suspended his license indefinitely unless proof be filed that petitioner: (1) reimbursed certain amounts to four parties, (2) deleted a provision in the 'Apartment Rental Agreement' to the effect that an applicant could not be released unless the rented apartment is not available within 30 days from the date agreed upon, and (3) filed a statement that in future transactions he would not charge more than one month's rent as his commissions for services rendered.

Section 441-c of the Real Property Law provides that the Department of State may revoke or suspend the license of a real estate broker if the licensee 'has demonstrated untrustworthiness * * * to act as a real estate borker.' Petitioner's main thrust is that this section is unconstitutional because the words 'demonstrated untrustworthiness' are vague and indefinite. The test is whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him and, although such warning must be unequivocal, this requirement does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding (People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 26, 27, 215 N.E.2d 345, 347). Thus, 'for cause' and...