400 DOS 11. The Complainant was represented by Senior Attorney Linda Cleary, Esq. COMPLAINT

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1 400 DOS 11 STATE OF NEW YORK DEPARTMENT OF STATE OFFICE OF ADMINISTRATIVE HEARINGS X In the matter of the Complaint of DEPARTMENT OF STATE DIVISION OF LICENSING SERVICES, Complainant, DECISION -against- JULIENNE SIALEU Respondent X The above noted matter came on for hearing before the undersigned, Dolores Franco, on June 1, 2011 at the office of the Department of State located at 123 William Street, New York, New York. The Respondent did not appear. The Complainant was represented by Senior Attorney Linda Cleary, Esq. COMPLAINT The complaint alleges that respondent Sialeu held herself out to the public as a licensed real estate broker when at the time she was not in fact licensed; demanded and collected compensation from someone other than a real estate broker with whom she was associated; failed to provide agency disclosure forms to the prospective tenants of a residential apartment; failed to disclose her ownership interest in the property rented by the tenants; failed to cooperate with the Department of State s investigation, and demonstrated a lack of good moral character, untrustworthiness, and/or incompetency due to the suspension of her security guard license and conviction on multiple counts of making false statements and theft of government funds. 1

2 FINDINGS OF FACT 1) Notice of hearing together with a copy of the complaint was served by certified mail addressed to the respondent at her two last known addresses appearing in the records of the Department of State and delivered sometime on March 24, One of the certified letters was returned by the Postal Service marked, unclaimed, but the second was not returned (State's Ex. 1). 2) Respondent Sialeu was duly licensed as a Real Estate Salesperson under the sponsorship of Highlawn Real Estate Corp. until she terminated her employment on October 5, She also applied for a security guard license, but her registration was suspended after an administrative hearing on December 14, (State s Ex. 2). 3) Ms. Glenny Marte testified that in August, 2009 she and Mr. Harry Benjamin Martinez contacted the Respondent who showed them an apartment at 500 Flatbush Avenue, 3 rd Floor, Brooklyn, NY ( Subject Apartment ). The Respondent held herself out to Ms. Marte as the broker for Exit All Seasons Realty. (State's Ex. 6). Thereafter, Respondent Sialeu provided Ms. Marte with a typed note explaining the documents needed to take occupancy of the apartment, including the required commission payments. Payments would be made by a certified check in the amount of $800 made payable to Exit All Seasons Realty and another $800 certified check made payable to Julienne Sialeu (State's Ex. 6). 4) The potential tenants agreed to rent the apartment and consequently provided the Respondent with certified checks as commission in the following manner: $800 made payable to Exit All Seasons Realty, which was later cancelled and made payable to Julienne Sialeu, and $800 made payable to Julienne Sialeu directly (State's Ex(s) 3, 5). 5) Ms. Marte further testified that on or about August 24, 2009, Ms. Marte and Mr. Martinez signed the Lease Agreement for the Subject Apartment. The landlord was not present at the signing, but his signature was already on the Lease (State's Ex. 4). An addendum to Lease Agreement was executed that same day (State's Ex. 5). 6) Ms. Marte testified that Respondent Sialeu did not provide agency disclosure forms to the prospective tenants at any time during the transaction. 7) At the time of the transaction involving the lease of the Subject Apartment, the Respondent was not associated or working with any licensed real estate brokerage (State s Ex(s) 8; 9). 8) Ms. Marte testified that the Respondent failed to divulge that she had a relationship with the owner of the subject premises, her son, and that she was a previous owner. 9) On August 2, 2010 Mr. Martinez obtained a judgment against Ms. Sialeu in Small Claims Court of Kings County, Index # 3813.SCK 2010 in the amount of $1, to recover the commission paid to Respondent (State s Ex. 7). The judgment was later vacated (State s Ex. 11). 2

3 10) Department of State License Investigator Mary Jo Triano ( Inv. Triano ) testified that during the investigation, she sent the Respondent three letters requesting clarification on the transaction and information regarding the Respondent s association (State s Ex. 15). Inv. Triano also requested that the Respondent appear for a scheduled interview. Notwithstanding the Department s requests, the Respondent provided limited responses which were untimely and failed to appear for a scheduled interview. 11) Sometime after March 8, 2011, Ms. Sialeu was convicted on four counts of making false statements and theft of government funds (State s Ex(s). 17; 18; 19). OPINION AND CONCLUSIONS OF LAW I - The holding of an ex parte quasi-judicial administrative hearing was permissible, inasmuch as there is evidence that notice of the place, time and purpose of the hearing was properly served. Real Property Law 441-e[2]; State Administrative Procedure Act 301[2]; Patterson v Department of State, 36 AD2d 616, 312 NYS2d 300 (1970);Roy Staley v Division of Licensing Services, 14 DOS App 01; Matter of the Application of Rose Ann Weis, 118 DOS 93. II- The Department of State retains jurisdiction to conduct this proceeding even though the Respondent Sialeu s license has expired. Albert Mendel & Sons, Inc. v. NYS Department of Agriculture and Markets, 90 AD2d 567, 455 NYS2d 867 (3 rd Dept. 1982); Main Sugar of Montezuma, Inc. v. Wickham, 37 AD2d 381, 325 NYS2d 858 (3 rd Dept. 1971). Respondent Trejos may renew his license anytime before June 11, 2011 merely by submitting an application and the applicable fee. Real Property Law 441(2). III- Pursuant to Real Property Law 440-a, it is unlawful for a person to act as a real estate broker or salesperson without being so licensed. The respondent violated that statute and thereby demonstrated untrustworthiness in violation of Real Property Law 441-c by acting as a real estate salesperson while unlicensed. IV- Pursuant to Real Property Law 442-a, it is unlawful for a real estate salesperson to demand or receive compensation of any kind from any person other than a duly licensed real estate broker with whom he is associated for any service rendered or work done by him in the selling or leasing of real property. By receiving a commission payment from the complainant while unlicensed as a real estate broker or salesperson, the respondent violated this statute and demonstrated untrustworthiness. V- Pursuant to Real Property Law 443, a real estate broker or salesperson is required to provide a prospective lessor of real property with an agency relationship disclosure form in a statutorily mandated format, and containing statutorily mandated information. By failing to provide such a form to Ms. Marte, Respondent Sialeu violated this statute. VI The evidence is insufficient to demonstrate that the Respondent failed to disclose an ownership interest in the subject property, as she in fact was not the legal owner of the unit (State s Ex. 16). The evidence does however, unequivocally show that she had a pecuniary 3

4 interest in the property due to her employment as a superintendant and manager, as well as having a durable power of attorney designated by her son, Joel Sialeu, who was the title owner of the subject property, to act as an agent in any real estate transactions, all of which was not disclosed to the tenants (State's Ex. 16). Accordingly, this charge is dismissed. VII- Real Property Law 442-e[5] states: "The Secretary of State shall have the power to enforce the provisions of this article and upon complaint of any person, or on his own initiative, to investigate any violation thereof or to investigate the business, business practices and business methods of any person, firm or corporation applying for or holding a license as a real estate broker or salesman, if in the opinion of the secretary of state such investigation is warranted. Each such applicant or licensee shall be obliged, on request of the secretary of state, to supply such information as may be required concerning his or its business, business practices or business methods, or proposed business practices or methods." Pursuant to RPL 442-j the Secretary of State has the authority to delegate to employees of the Department of State the above powers to compel a licensee to supply information. The respondent provided limited and untimely information in response to several communications left or sent by the complainant s investigator in the course of his investigation. Respondent also failed to appear for a scheduled interview. In so doing she violated her duty to cooperate with the investigation and further demonstrated untrustworthiness. VIII- The suspension of respondent s security guard license resulting from criminal convictions which include multiple counts of making false statements and theft of government services demonstrates a lack of good moral character and untrustworthiness and/or incompetency in violation of RPL 441-c. IX -Although the respondent did submit two unsworn written statements to the investigator, she did not appear at the hearing to testify. Under these circumstances, the tribunal is unable to assess her credibility. 4

5 DETERMINATION WHEREFORE, IT IS HEREBY DETERMINED THAT Julienne Sialeu has violated Real Property Law 442-and has demonstrated untrustworthiness and incompetency. Accordingly, pursuant to Real Property Law 441-c, should she ever apply for a license as a real estate salesperson or broker no action shall be taken on such application until she has paid a fine of $2, to the Department of State and has submitted proof satisfactory to the Department of State that she has paid $ to Ms. Glenny Martinez. The respondent is directed to send a certified check or money order for the fine payable to Secretary of State to Norma Rosario, Department of State, Division of Licensing Services, P.O. Box 22001, Albany, New York Dolores Franco Administrative Law Judge Dated: October 17,