Opinion
July 8, 1970
MEMORANDUM BY THE COURT. Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Montgomery County) to review a determination of the Department of State revoking petitioner's real estate broker's license, pursuant to section 441-c Real Prop. of the Real Property Law, and his notary public commission, pursuant to section 130 Exec. of the Executive Law. The disciplinary action regarding the broker's license was based on a finding of petitioner's "demonstrated untrustworthiness and/or incompetence" to act as a real estate broker (Real Property Law, § 441-c, subd. 1). This finding is justified by: (1) petitioner's failure to protect the interests of the sellers of certain premises at Fultonville in transactions in which petitioner represented both sets of principals, the Cravers having been willing to sell and the La Plantes having been willing to purchase for $2,500, but under purchase agreements from the Cravers to Overgaard and from Overgaard to the La Plantes the La Plantes purchased for $2,500 and the Cravers sold for $2,000 without being informed of what they could and should have received; (2) petitioner's representation of the different parties concerned involving the sale of 175 acres in Lewis County, concerning which one Renzler signed a purchase offer dated January 12, 1967 for $4,400 and paid $440 as a deposit on or before said date and concerning which a deed was executed on February 8, 1967 to one Salgado under a $5,500 price arrangement; (3) petitioner's representation of both sides in a transaction in which the Cotters signed in the office of Battles, a broker, a purchase offer agreement listing an estate as the seller when in fact title rested in the Youngs, in which a "closing" took place on May 25, 1968, with payment of the balance due to the Cotters but without a deed from the Youngs to the estate, and the advance of $500 cash to Battles after the "closing" and before the delivery by Battles of an allegedly forged deed, at which time petitioner knew Battles was in financial difficulty and had a bad check outstanding. While petitioner denies that he participated in any way in the deceit, the Secretary of State was not bound to accept his excuses or explanations of his acts, which themselves permit inferences of guilty knowledge and intent, or incompetence to recognize same and take effective independent action, as factual determinations ( Matter of D'Alois v. Allen, 31 A.D.2d 983, app. dsmd. 25 N.Y.2d 908; Matter of Wasserman v. Board of Regents, 13 A.D.2d 591, affd. 11 N.Y.2d 173, app. dsmd. 371 U.S. 23), the administrative determination viewed in the light of the record as a whole is supported by substantial evidence (cf. Matter of Tegeler v. Department of State of State of N.Y., 23 A.D.2d 917). The commencement of hearings without petitioner's presence on two occasions was not a denial of due process. There is no evidence of the absence of proper notice of the starting times and respondents are not to be blamed for petitioner's tardiness, particularly in view of the various other parties interested in the proceedings. The contention that the determination stated in the alternative was also such a denial overlooks the use of the wording of section 441-c Real Prop. of the Real Property Law and the detailed report of the hearing officer setting forth all operative facts upon which his conclusion was based. Matter of Apostol v. Department of State of State of N Y ( 23 A.D.2d 845) involved section 442-c Real Prop. of the Real Property Law, dealing with the accountability of brokers for the misdeeds of their employees, but section 441-c is relevant here. The alleged error in the stenographic transcript does not dictate a different result in view of the great mass of other evidence establishing culpability. The hearing officer concluded that petitioner's notary public commission should be revoked "for acts of misconduct as related". A notary public is a public officer and the responsibilities of the Secretary of State extend to protecting the public against misconduct by notaries, the caliber of a notary and his right to remain in office to be measured not only by his activities as such but also by trustworthiness and competence exhibited in other areas in which the public is concerned (cf. Matter of Kamper v. Department of State of State of N.Y., 26 A.D.2d 697, affd. 22 N.Y.2d 690; Matter of Diona v. Lomenzo, 26 A.D.2d 473, 477; Matter of Klein v. Department of State of State of New York, 18 A.D.2d 795, mot. for lv. to app. den. 13 N.Y.2d 594). No issue has been raised as to the excessiveness of the punishment. Determination confirmed, without costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by the court.