Opinion
14618 Index No. 160213/20 Case No. 2021–00584
11-16-2021
In the Matter of Jon WILNER, Petitioner, v. NEW YORK DEPARTMENT OF STATE, DIVISION OF LICENSING SERVICES, Respondent.
Peska & Associates, P.C., White Plains (Adam M. Peska of counsel), for petitioner. Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.
Peska & Associates, P.C., White Plains (Adam M. Peska of counsel), for petitioner.
Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, Scarpulla, JJ.
Determination of respondent, dated November 23, 2020, which, after a hearing, revoked petitioner's real estate broker license, unanimously confirmed, the petition denied, and this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Debra A. James, J.], entered February 16, 2021) dismissed, without costs.
The determinations by the Administrative Law Judge (ALJ) that petitioner "demonstrated untrustworthiness [and] incompetency to act as a real estate broker" ( Real Property Law § 441–c[1] ), are supported by substantial evidence in the record (see CPLR 7803[4] ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). There was ample testimony and documentary evidence concerning the allegations of 19 separate complainants, as well as petitioner's own testimony, to support the findings that petitioner mismanaged funds, and engaged in deceptive and fraudulent acts. The testimony and evidence also supported the finding that petitioner breached his fiduciary duties to landlord and tenant clients by not remitting monies from the escrow account covering rent payments; not timely refunding security deposits; falsely telling clients that their money was forthcoming; commingling escrowed funds; and engaging in poor accounting practices. Additionally, petitioner admitted under oath in a criminal plea to stealing funds that did not belong to him and engaging in a scheme to defraud (see General Obligations Law § 7–103[1] ; 19 NYCRR 175.1 – 175.3 [a], [b]; see also Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 477–478, 329 N.Y.S.2d 805, 280 N.E.2d 640 [1972] ).
We find no grounds to overturn the ALJ's factual findings and credibility determinations (see Matter of Riel v. State of N.Y. Off. of Family & Children's Servs., 175 A.D.3d 1166, 1167, 109 N.Y.S.3d 233 [1st Dept. 2019] ). Nor do we find the penalty of license revocation "shocking to one's sense of fairness" ( Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ) given, among other things, the "numerous instances of misconduct and incompetence" ( Matter of Morey v. Somers Cent. School Dist., 24 A.D.3d 558, 559, 805 N.Y.S.2d 288 [2d Dept. 2005] ), and petitioner's refusal to accept responsibility ( Matter of Celestin v. Novello, 43 A.D.3d 545, 546, 840 N.Y.S.2d 475 [3d Dept. 2007] ).
We reject petitioner's contention that there was a violation of lawful procedure requiring vacatur because respondent failed to abide by the time limitations for rendering decisions set forth in its own regulations (see CPLR 7803[3] ). The time limitation at issue here "is directory only, not mandatory" ( Matter of Hortman v. Division of Licensing Servs., 166 A.D.3d 1585, 1586, 85 N.Y.S.3d 914 [4th Dept. 2018], citing 19 NYCRR 400.13 [a]). Indeed, petitioner has "cited no case, and we know of none, in which a time limit or other procedural requirement imposed on an administrative agency by its own regulation was held to be mandatory" ( Matter of Dickinson v. Daines, 15 N.Y.3d 571, 575, 915 N.Y.S.2d 200, 940 N.E.2d 905 [2010] ). Moreover, the record demonstrates no violation, as petitioner consented to each continuance of the hearing ( 19 NYCRR 400.13 [a]) and there is no language in the regulation expressly limiting the number of times an ALJ "may ... extend the time periods" provided to render a decision ( 19 NYCRR 400.13 [c]; see Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79, 854 N.Y.S.2d 83, 883 N.E.2d 990 [2008] ). Nor does petitioner demonstrate substantial prejudice by showing actual injury from any failure to abide by time limitations (see Matter of Dickinson, 15 N.Y.3d at 577, 915 N.Y.S.2d 200, 940 N.E.2d 905 ; Matter of Sarkisian Bros., Inc. v. State Div. of Human Rights, 48 N.Y.2d 816, 818, 424 N.Y.S.2d 125, 399 N.E.2d 1146 [1979] ).