Kostika v. Cuomo

• Decision Date: 04 December 1975
• Citation: 50 A.D.2d 742,376 N.Y.S.2d 135
• Parties: Miriam KOSTIKA, Petitioner, v. Mario CUOMO, Secretary of State, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 135

376 N.Y.S.2d 135

50 A.D.2d 742

Miriam KOSTIKA, Petitioner, v. Mario CUOMO, Secretary of State, et al., Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 4, 1975.

B. H. Segal, New York City, for petitioner.

D. L. Birch, New York City, for respondents.

Before STEVENS, P.J., and LUPIANO, TILZER, CAPOZZOLI and NUNEZ, JJ.

PER CURIAM.

In this Article 78 proceeding to review and annul a determination of respondent dated December 29, 1974, which was transferred to this Court pursuant to CPLR 7803, subd. 4, and CPLR 7804, subd. (g), the determination of respondent is unanimously modified on the law and in the exercise of discretion to strike the direction for repayment of $15,050 to Mr. and Mrs. Hanel and a fine of $200 only is imposed. As so modified the determination is otherwise confirmed without costs and without disbursements.

Section 175.6 of the Rules affecting real estate brokers and salesmen (19 NYCRR 175.6) states clearly: 'Before a real estate broker sells property in which he owns an interest, he shall make such interest known to the purchaser.' It is a breach of the broker's duty to fail to reveal such interest. The regulation is not only for the protection of the public, but it affords an option to a prospective buyer as to whether such buyer wishes to deal with a broker-owner who generally is more sophisticated in the buying and selling of real property than the buyer.

Although the evidence was conflicting as to whether petitioner revealed to the buyers, Mr. and Mrs. Hanel, that she was a real estate broker, it was for the trier of the facts to determine where the truth lay. Nor may the court, under such circumstances substitute its judgment for that of the administrative agency (See Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321).

It is also worthy of note and supportive of the determination that, although petitioner's license was issued in the name of Kostika, she used her maiden name of Schweky in her transaction with the Hanels. Moreover, in advertising the property for sale the petitioner failed to state that she was a dealer in such property or to make it plainly apparent from the context of the advertisement that she was a dealer, thus violating section 396--b of the General Business Law, the predecessor of which was former Penal Law section 421--a. (See 1932 Opns. Atty.Gen. 193; 1930 Opns. Atty.Gen. 241; 1929 Opns. Atty.Gen. 264).

While the determination of untrustworthiness is within the broad discretion given the Secretary of State by statute and is supported by substantial evidence, (Matter of Luxenberg v. Stichman, 2 A.D.2d 605, 607, 157 N.Y.S.2d 395, 397; Matter of Sigety v. Ingraham, 29 N.Y.2d 110, 114, 324 N.Y.S.2d 10, 12, 272 N.E.2d 524, 526), the sanctions imposed are modified as heretofore indicated because, in light of the evidence, we find the total sanctions so disproportionate to the offense as to shock one's sense of fairness (Matter of Pell v. Board of Education, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 841, 313 N.E.2d 321, 324). It does not appear that the Hanels were overcharged for the property though petitioner made a very substantial profit on the transaction. Petitioner offered to rescind the transaction, an offer refused by the Hanels, who indicated they would probably have still purchased the property had they known the petitioner was a broker. Under the circumstances, we deem the fine imposed adequate punishment for the offense.

All concur, except LUPIANO and CAPOZZOLI, JJ., who concur in the result in the following memorandum by LUPIANO, J.:

I concur in the result reached herein. However, it is my view that the fine of $200 which we countenance on this appeal, can be sustained only on the basis of a technical violation of General...