MATTER OF RE/MAX ALL-PRO REALTY, INC. v. NEW YORK STATE DEPARTMENT OF STATE, DIVISION OF LICENSING SERVICES
| Decision Date | 15 March 2002 |
| Citation | 739 N.Y.S.2d 321,292 A.D.2d 831 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of RE/MAX ALL-PRO REALTY, INC., et al., Respondents,<BR>v.<BR>NEW YORK STATE DEPARTMENT OF STATE, DIVISION OF LICENSING SERVICES, Appellant. |
Present — Pine, J.P., Wisner, Scudder, Burns and Gorski, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously vacated, the determination is confirmed without costs and the petition is dismissed.
Petitioners commenced this CPLR article 78 proceeding seeking to annul the determination, made following a hearing, that they engaged in professional misconduct. Although the petition challenges the determination as "arbitrary and capricious," (Matter of Segrue v City of Schenectady, 132 AD2d 270, 273-274; see, Matter of Dippell v Hammons, 246 AD2d 450, 451, lv denied 92 NY2d 801). We therefore "review the petition de novo as if it had been properly transferred" (Matter of Blanco v Popolizio, 190 AD2d 554, 554-555).
Pursuant to Real Property Law § 441-c (1), respondent may revoke or suspend the license of a real estate broker or salesperson, reprimand the real estate broker or salesperson, or impose a fine, if he or she "has demonstrated untrustworthiness or incompetency to act as a real estate broker or salesperson, as the case may be." Respondent's determination that petitioners breached their fiduciary duties, failed to comply with Real Property Law § 443 and converted and misused trust funds, thereby demonstrating untrustworthiness and incompetency, is supported by substantial evidence in the record (see generally, 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182). Although there are conflicting accounts of what occurred, "questions of fact and credibility are within the authority of [respondent] to resolve and * * * respondent was [not] required to accept the petitioners' account of what transpired" (Matter of Facey v Department of State, 132 AD2d 698, 698, lv denied 70 NY2d 611). Contrary to the contention of petitioners, "a wrongful intent is not an essential element of the conversion" (Leve v Itoh & Co. [Am.], 136 AD2d 477, 478, lv denied 71 NY2d 806), nor is it necessary to show that they acted...
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...simply is not an element of an otherwise valid conversion claim." See also In the Matter of Re/Max All-Pro Realty, Inc. v. New York State Dep't of State, 292 A.D.2d 831, 832, 739 N.Y.S.2d 321 (4th Dep't 2002) ("a wrongful intent is not an essential element of the conversion") (citation omit......
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...petition de novo as if it had been properly transferred [in its entirety]' " ( Matter of Re/Max All-Pro Realty v. New York State Dept. of State, Div. of Licensing Servs., 292 A.D.2d 831, 831, 739 N.Y.S.2d 321, lv. denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221; see Matter of Hosmer ......
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...reprimand the real estate broker or salesperson, or impose a fine" ( Matter of Re/Max All–Pro Realty v. New York State Dept. of State, Div. of Licensing Servs., 292 A.D.2d 831, 831–832, 739 N.Y.S.2d 321 [4th Dept. 2002], lv denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). In......
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