Preview
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 65
HL OPP. - EXHIBIT 65 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
New York State Association of REALTORS"
A risk management tool
LEGALLINES for
New York's REALTORS"
THIRD QUARTER 2010
Governor Paterson signs landmark agency disclosure bill
By Anthony Gatto, Esq., NYSAR Legal Counsel
On August 30, 2010, Gov. David Paterson seller is represented by the seller's agent, (and advanced consent to dual agency with
signed a bill into law amending Real Prop- dual agency arises:' This position meant designated sales agents) once an agency
erty Law §443 to add two new components that dual agency was transactional in nature relationship is established at first substan-
to the agency disclosure law relating to (in other words, dual agency cannot be tive contact.
advanced consent to dual agency and consented to until such time as it actually
agency disclosure for condominiums and arises) and advanced consent to the same When dual agency is discussed with the
cooperative apartments/units. The new law was prohibited. By taking such client, the client will then be
and required forms do not take effect until a position, the DOS required able to indicate their consent
January 1, 2011. that dual agency be consented New York News to dual agency in advance by
to prior to an in-house showing indicating the same on the new
Under the new law, sellers, landlords, buyers of a listed property. agency disclosure form. Ad-
and tenants are permitted to consent to dual vanced consent to dual agency
agency or dual agency with designated sales It was NYSAR's opinion that by not permit- with designated sales agents can be done
agents in advance by indicating the same on ting advanced consent to dual agency, the in the same manner. The only difference is
a new revised agency disclosure form. consumer was the only party being penal- that the seller, landlord, buyer or tenant will
ized.Without the option to consent to dual be able to designate a specific licensee as a
The concept of advanced consent to dual agency in advance, the consumer would be designated agent should it arise. It is not
agency has been around for quite some time, required to sign numerous agency disclosure required that both designated agents are
but was not permitted under the Real Prop- forms every time another buyer's agent from filled in when advanced consent is given. In
erty Law. The New York State Department of the listing brokerage wanted to show the other words, when a seller consents to dual
State, Division of Licensing Services (DOS) property to a buyer-client. Often, the buyer agency with designated sales agents in ad-
issued a legal memorandum directly on point would be unable to view a property because vance, it is likely that the seller will designate
with this issue.
According to "Legal Memo- the seller was unavailable at the time.
Fur- their listing agent (unless the listing agent is
randum LI12: Be Wary of Dual Agency,' dual thermore, sellers were often confused as to the principal broker since principal brokers
agency typically arose in the following way: the reason why they were required to sign are prohibited from acting as a designated
a real estate broker employs two salespeople, numerous forms. agent). Likewise, a buyer will most likely
one who works for the buyer as a buyer's designate their buyer's agent as their desig-
agent and the other who works for the seller Advanced consent to dual agency ( and nated agent (except in the instance where the
as a seller's agent. The real estate broker andadvanced consent to dual agency with des- buyer's agent is the principal).
Once dual
his salespeople are "one and the same" entity ignated sales agents) should not be utilized agency with designated sales agents arises,
when analyzing whether dual agency exists. by licensees until January 1, 2011 when the both sides will know the identity of the other
The memorandum goes one step further by law becomes effective. On or after January designated agent.
1, 2011, licensees will be able to have their
expressly stating: "As soon as the buyer's agent
introduces the buyer to property in which the respective clients consent to dual agency In discussions with the Department ofState,
NYSAR has clarified the responsibility of a
licensee once dual agency or dual agency
If dual
with designated sales agents arises.
The new agency disclosure forms are available in this issue agency arisesas aresultof a showing, the
licensee is not required to notify the seller
and the legal section of NYSAR.com. These forms should not immediately since the seller should reason-
be used until January 1, 2011. ably presume that dual agency showings
will occur during the time of the listing.
See Dislosure, page 2
HL OPP. - EXHIBIT 65 - PAGE 2
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NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
•k4dii
Disclosure: Law allows advanced consent to dual agency continuectrrompage1
However, it is highly recommended that of a licensee's agency status. at first substantive contact pursuant to Real
the seller be informed as to all instances of Property Law §443(3)(a-c).
dual agency that are the result of a showing. Licensees should be aware that dual
This notification can be done via telephone, agency must be discussed with the seller Prior to the passage of this bill, Real Property
e-mail (using the address provided by the and/or buyer at the onset of discussions Law §443( l)(f) specifically exempted condo-
seller), fax (using the fax number provided concerning agency. The law specifically miniums and cooperative apartments/units
by the seller) or by letter. As always, NYSAR states that the client is giving consent to from the requirement ofproviding an agency
recommends all notices be in writing so the "advanced informed consent:' This means disclosure form. Only licensees having
licensee will have documented proof of any the client must be fully informed as to substantive contact with a seller, landlord,
such notification. all aspects of dual agency. Clients need buyer or tenant of a 1-4 family dwelling were
to be fully informed as to the fiduciary required to provide the agency disclosure
After dual agency arises, if a potential pur- obligations they will be losing by agreeing form to those individual(s). With the re-
chaser begins negotiations of any type, it is to dual agency as well. Licensees must moval of the exemption and the inclusion of
required that the licensee contact the seller make it perfectly clear what the client is condominiums and cooperative apartments/
and inform them that there is a dual agency consenting to and how it will affect the units, licensees will be required to provide
situation where the buyer is showing inter- representation they are receiving from the the agency disclosure form for all 1-4 fam-
est in the property.
Again, this notification licensee. Failure to do so can be consid- ily dwellings as well as condominiums and
can be done via telephone, e-mail (using the ered a violation of Article 12-A of the Real cooperative apartments/units.
address provided by the seller), fax (using Property Law and may subject the licensee
the fax number provided by the seller) or by to DOS disciplinary action. The new forms are also available in the legal
letter. In order to minimize the potential section of NYSAR.com, but should not be
for liability, all notices should be in writingNew law requires disclosure for used until January 1, 2011.
and made at the time of negotiations or condominiums and cooperative
immediately thereafter. If a dual agency apartments/units
showing results in the presentation of a
Under the new law, condominiums and co-
purchase offer, it is recommended that the
operative apartments/units are added in the
signed agency disclosure forms be attached
definition of residential real property as it re-
to the purchase offer so it is clear to the seller
and buyer that the transaction is dual agency lates to agency disclosure. This change now
in nature. There is nothing prohibiting a requires real estate licensees representing a
seller, landlord, buyer or tenant of a condo-
licensee from having their client(s) execute
minium or cooperative apartment/unit to be
a new agency disclosure form at the time of
presented with the agency disclosure form
contract to memorialize their understanding
Visit the NYSAR Media Center at NYSAR.com
for webinars covering key legal topics
including:
• Complying with the Commission Escrow Act
• Do-Not-Call compliance
• The duty to disclose a stigmatized property
• And much more
Visit www.nysar.com today.
HL OPP. - EXHIBIT 65 - PAGE 3
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PAGE 3
NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who to account. A buyer's agent does not represent the
are acting as agents of buyers or sellers of property to interests of the seller. The obligations of a buyer's
advise the potential buyers or sellers with whom they agent are also subject to any specific provisions set
work of the nature of their agency relationship and forth in an agreement between the agent and the buy-
the rights and obligations it creates. This disclosure er. In dealings with the seller, a buyer's agent should
will help you to make informed choices about your (a) exercise reasonable skill and care in performance
relationship with the real estate broker and its sales of the agent's duties; (b) deal honestly, fairly and in
agents. good faith; and (c) disclose all facts known to the
agent materially affecting the buyer's ability and/or
Throughout the transaction you may receive more
willingness to perform a contract to acquire seller's
than one disclosure form. The law may require each
property that are not inconsistent with the agent's fi-
agent assisting in the transaction to present you with
duciary duties to the buyer.
this disclosure form. A real estate agent is a person
qualified to advise about real estate.
BROKER'S AGENTS
If you need legal, tax or other advice, consult with a
A broker's agent is an agent that cooperates or is en-
professional in that field.
gaged by a listing agent or a buyer's agent (but does
not work for the same firm as the listing agent or
DISCLOSURE REGARDING REAL ESTATE
buyer's agent) to assist the listing agent or buyer's
AGENCY RELATIONSHIPS
agent in locating a property to sell or buy, respective-
ly, for the listing agent's seller or the buyer agent's
SELLER'S AGENT
buyer. The broker's agent does not have a direct rela-
A seller's agent is an agent who is engaged by a seller tionship with the buyer or seller and the buyer or sel-
to represent the seller's interests. The seller's agent ler cannot provide instructions or direction directly to
does this by securing a buyer for the seller's home at the broker's agent. The buyer and the seller therefore
a price and on terms acceptable to the seller. A sel- do not have vicarious liability for the acts of the bro-
ler's agent has, without limitation, the following fidu- ker's agent. The listing agent or buyer's agent do pro-
ciary duties to the seller: reasonable care, undivided vide direction and instruction to the broker's agent
loyalty, confidentiality, full disclosure, obedience and and therefore the listing agent or buyer's agent will
duty to account. A seller's agent does not represent have liability for the acts of the broker's agent.
the interests of the buyer. The obligations of a seller's
agent are also subject to any specific provisions set DUAL AGENT
forth in an agreement between the agent and the sel-
A real estate broker may represent both the buyer and
ler. In dealings with the buyer, a seller's agent should
the seller if both the buyer and seller give their in-
(a) exercise reasonable skill and care in performance
formed consent in writing. In such a dual agency sit-
of the agent's duties; (b) deal honestly, fairly and in
uation, the agent will not be able to provide the full
good faith; and (c) disclose all facts known to the
range of fiduciary duties to the buyer and seller. The
agent materially affecting the value or desirability of
obligations of an agent are also subject to any specif-
property, except as otherwise provided by law.
ic provisions set forth in an agreement between the
agent, and the buyer and seller. An agent acting as a
BUYER'S AGENT
dual agent must explain carefully to both the buyer
A buyer's agent is an agent who is engaged by a buy- and seller that the agent is acting for the other party
er to represent the buyer's interests. The buyer's agent as well. The agent should also explain the possible
does this by negotiating the purchase of a home at a effects of dual representation, including that by con-
price and on terms acceptable to the buyer. A buyer's senting to the dual agency relationship the buyer and
agent has, without limitation, the following fiduciary seller are giving up their right to undivided loyalty. A
duties to the buyer: reasonable care, undivided loyal- buyer or seller should carefully consider the possible
ty, confidentiality, full disclosure, obedience and duty consequences of a dual agency relationship before
HL OPP. - EXHIBIT 65 - PAGE 4
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PAGE 4
agreeing to such representation. A seller or buyer the interests of and advocating on behalf of the buyer
may provide advance informed consent to dual agen- and the designated sales agent for the seller will func-
cy by indicating the same on this form. tion as the seller's agent representing the interests of
and advocating on behalf of the seller in the negotia-
DUAL AGENT WITH DESIGNATED SALES tions between the buyer and seller. A designated sales
AGENTS agent cannot provide the full range of fiduciary duties
to the buyer or seller. The designated sales agent
If the buyer and the seller provide their informed
must explain that like the dual agent under whose
consent in writing, the principals and the real estate
supervision they function, they cannot provide undi-
broker who represents both parties as a dual agent
vided loyalty. A buyer or seller should carefully con-
may designate a sales agent to represent the buyer
sider the possible consequences of a dual agency re-
and another sales agent to represent the seller to ne-
lationship with designated sales agents before agree-
gotiate the purchase and sale of real estate. A sales
ing to such representation. A seller or buyer may
agent works under the supervision of the real estate
provide advance informed consent to dual agency
broker. With the informed consent of the buyer and
with designated sales agents by indicating the same
the seller in writing, the designated sales agent for the
on this form.
buyer will function as the buyer's agent representing
This form was provided to me by _________________________________________ (print name of licensee) of
_______________________________ (print name of company, firm or brokerage), a licensed real estate broker
acting in the interest of the:
( ) Seller as a (check relationship below) ( ) Buyer as a (check relationship below)
( ) Seller's agent ( ) Buyer's agent
( ) Broker's agent ( ) Broker's agent
( ) Dual agent
( ) Dual agent with designated sales agents
For advance informed consent to either dual agency or dual agency with designated sales agents complete sec-
tion below:
( ) Advance informed consent dual agency
( ) Advance informed consent to dual agency with designated sales agents
If dual agent with designated sales agents is indicated above:
_________________________________ is appointed to represent the buyer; and
_________________________________ is appointed to represent the seller in this transaction.
(I)(We) acknowledge receipt of a copy of this disclosure form:
Signature of Buyer(s) and/or Seller(s):
______________________________ ______________________________
______________________________ ______________________________
Date:__________________________ Date:__________________________
HL OPP. - EXHIBIT 65 - PAGE 5
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
PAGE 5
NEW YORK STATE DISCLOSURE FORM FOR LANDLORD AND TENANT
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who agent does not represent the interest of the landlord.
are acting as agents of landlords and tenants of real The obligations of a tenant's agent are also subject to
property to advise the potential landlords and tenants any specific provisions set forth in an agreement be-
with whom they work of the nature of their agency tween the agent and the tenant. In dealings with the
relationship and the rights and obligations it creates. landlord, a tenant's agent should (a) exercise reasona-
This disclosure will help you to make informed ble skill and care in performance of the agent's duties;
choices about your relationship with the real estate (b) deal honestly, fairly and in good faith; and (c)
broker and its sales agents. disclose all facts known to the tenant's ability and/or
willingness to perform a contract to rent or lease lan-
Throughout the transaction you may receive more
dlord's property that are not inconsistent with the
than one disclosure form. The law may require each
agent's fiduciary duties to the buyer.
agent assisting in the transaction to present you with
this disclosure form. A real estate agent is a person
BROKER'S AGENTS
qualified to advise about real estate. If you need le-
gal, tax or other advice, consult with a professional in A broker's agent is an agent that cooperates or is en-
that field. gaged by a listing agent or a tenant's agent (but does
not work for the same firm as the listing agent or te-
DISCLOSURE REGARDING REAL ESTATE
nant's agent) to assist the listing agent or tenant's
AGENCY RELATIONSHIPS
agent in locating a property to rent or lease for the
LANDLORD'S AGENT listing agent's landlord or the tenant agent's tenant.
A landlord's agent is an agent who is engaged by a The broker's agent does not have a direct relationship
landlord to represent the landlord's interest. The lan- with the tenant or landlord and the tenant or landlord
dlord's agent does this by securing a tenant for the cannot provide instructions or direction directly to the
landlord's apartment or house at a rent and on terms broker's agent. The tenant and the landlord therefore
acceptable to the landlord. A landlord's agent has, do not have vicarious liability for the acts of the bro-
without limitation, the following fiduciary duties to ker's agent. The listing agent or tenant's agent do pro-
the landlord: reasonable care, undivided loyalty, con- vide direction and instruction to the broker's agent
fidentiality, full disclosure, obedience and duty to and therefore the listing agent or tenant's agent will
account. A landlord's agent does not represent the have liability for the acts of the broker's agent.
interests of the tenant. The obligations of a landlord's
agent are also subject to any specific provisions set DUAL AGENT
forth in an agreement between the agent and the lan- A real estate broker may represent both the tenant
dlord. In dealings with the tenant, a landlord's agent and the landlord if both the tenant and landlord give
should (a) exercise reasonable skill and care in per- their informed consent in writing. In such a dual
formance of the agent's duties; (b) deal honestly, fair- agency situation, the agent will not be able to provide
ly and in good faith; and (c) disclose all facts known the full range of fiduciary duties to the landlord and
to the agent materially affecting the value or desira- the tenant. The obligations of an agent are also sub-
bility of property, except as otherwise provided by ject to any specific provisions set forth in an agree-
law. ment between the agent, and the tenant and landlord.
An agent acting as a dual agent must explain careful-
TENANT'S AGENT ly to both the landlord and tenant that the agent is
A tenant's agent is an agent who is engaged by a te- acting for the other party as well. The agent should
nant to represent the tenant's interest. The tenant's also explain the possible effects of dual representa-
agent does this by negotiating the rental or lease of an tion, including that by consenting to the dual agency
apartment or house at a rent and on terms acceptable relationship the landlord and tenant are giving up
to the tenant. A tenant's agent has, without limitation, their right to undivided loyalty. A landlord and tenant
the following fiduciary duties to the tenant: reasona- should carefully consider the possible consequences
ble care, undivided loyalty, confidentiality, full dis- of a dual agency relationship before agreeing to such
closure, obedience and duty to account. A tenant's representation. A landlord or tenant may provide ad-
HL OPP. - EXHIBIT 65 - PAGE 6
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NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
PAGE 6
vance informed consent to dual agency by indicating landlord will function as the landlord's agent
the same on this form. representing the interests of and advocating on behalf
of the landlord in the negotiations between the tenant
DUAL AGENT WITH DESIGNATED SALES and the landlord. A designated sales agent cannot
AGENTS provide the full range of fiduciary duties to the lan-
dlord or tenant. The designated sales agent must ex-
If the tenant and the landlord provide their informed
plain that like the dual agent under whose supervision
consent in writing, the principals and the real estate
they function, they cannot provide undivided loyalty.
broker who represents both parties as a dual agent
A landlord or tenant should carefully consider the
may designate a sales agent to represent the tenant
possible consequences of a dual agency relationship
and another sales agent to represent the landlord. A
with designated sales agents before agreeing to such
sales agent works under the supervision of the real
representation. A landlord or tenant may provide ad-
estate broker. With the informed consent in writing of
vance informed consent to dual agency with desig-
the tenant and the landlord, the designated sales agent
nated sales agents by indicating the same on this
for the tenant will function as the tenant's agent
form.
representing the interests of and advocating on behalf
of the tenant and the designated sales agent for the
This form was provided to me by _________________________________________ (print name of licensee) of
_______________________________ (print name of company, firm or brokerage), a licensed real estate broker
acting in the interest of the:
( ) Landlord as a (check relationship below) ( ) Tenant as a (check relationship below)
( ) Landlord’s agent ( ) Tenant's agent
( ) Broker's agent ( ) Broker's agent
( ) Dual agent
( ) Dual agent with designated sales agents
For advance informed consent to either dual agency or dual agency with designated sales agents complete sec-
tion below:
( ) Advance informed consent dual agency
( ) Advance informed consent to dual agency with designated sales agents
If dual agent with designated sales agents is indicated above:
_________________________________ is appointed to represent the tenant; and
_________________________________ is appointed to represent the landlord in this transaction.
(I)(We) acknowledge receipt of a copy of this disclosure form:
Signature of Landlord(s) and/or Tenant(s):
______________________________ ______________________________
______________________________ ______________________________
Date:__________________________ Date:__________________________
HL OPP. - EXHIBIT 65 - PAGE 7
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
42.\dD
Broker loses commission for
lack of an extension clause NYSAR Legal Hotline call report
By Anthony Gatto, Esq., second quarter 2010
NYSAR Legal Counsel
In United Real Estate & Property Manage-
ment, Inc. v.Charnyshov and Yablons- HOTLINE ISSUES
kaya, the issue of a disputed commission
between a licensee and consumer was • COMMISSION
decided based on representations made
• LICENSE LAW
in a signed listing agreement.
• FAIR HOUSING
On April l, 2006, United entered into an a CONTRACT
exclusive right to sell listing agreement with
a DISCLOSURE
Chrnyshov and Yablonskaya (defendants) for
a period ending on July l, 2006.
Prior to the • AGENCY
termination of the listing agreement, an agent
of the defendantd procured a purchaser that
was willing to purchase the listed property.
The purchaser did not sign a purchase contract
------2% •
•
•
Dos
REFERRALS
ARBITRATION
prior to the expiration of the listing agreement. • CODE OF ETHICS
On July 2, 2006 (one day after listing expired), • BOARD/ASSOCIATION
United entered into another exclusive right to
a MLS
sell agreement with Maximillion Realty for
the same property. Maximillion advised the • OTHER HOTLINE ISSUE
defendants to lower the asking price of their
property. On July 5, 2006, defendants entered
into a purchase contract with the buyers that
ISSUES
were originally "willing' to purchase the prop-
COMMISSION 102 12%
erty under the prior listing agreement with
United. Upon closing, Maximillion received
LICENSE LAW 11 0 13%
the commission for the sale.The defendant FAIRHOUSING 19 2%
initiated the lawsuit to recover the commis- CONTRACT 205 25%
sion they believed they were entitled to as the DISCLOSURE 11 5 14%
procuring cause of the sale. AGENCY 54 7%
DOS 21 3%
In New York, a broker can only make a REFERRALS 15 2%
claim for commissions when: 1) the broker ARBITRATION 10 1%
is licensed; 2) the broker had a contract, CODEOF ETHICS 11 1%
expressed or implied, with the party to be BOARD/ ASSOCIATION 12 1%
charged with paying the commission; and
MLS 48 6%
3) the broker was the procuring cause of the
OTHERHOTLINE ISSUE 102 12%
sale. It is uncontested that the defendant
secured the buyers that were ready, willing TOTAL ISSUES...................................... 824
and able to purchase the property prior to
the expiration of the listing agreement. Since
the contract was not signed until after the Average length of call: 11 minutes
listing agreement expired, the court looked Average calls p er d ay: 14
to the language of the listing agreement to
see if there was an extension clause. The NYSAR Legal Hotline is available to members by calling
518-436-9727 Monday through Thursday from 9 a.m. to 1 p.m.
The court examined extension clauses and
the common language found in them. Un-
See Commission, page 9
HL OPP. - EXHIBIT 65 - PAGE 8
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
know wllat rd do with.DUil
Al[ ,d.DJ:i'1l
NYSAll's legal Hotline!
... Jt provides immediate and acm.rate
B1ILSWeIB to many qm.eatlcu ....g,
~ ~ . N ' r ~R.....rfr, 9 PJJ
HL OPP. - EXHIBIT 65 - PAGE 9
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NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021
PAGE 9
Indicating unoccupied address on license application cost broker $1,000
By Anthony Gatto, Esq., NYSAR Legal Counsel
In the case of the New York State Depart- Wertheim contacted DOS six weeks after the DOS as to the actual address of the broker-
ment of State v. Gary D. Wertheim and Real letters were sent out and returned. Wert- age and supplying an address he did not and
Property Data Network (Wertheim) it was heim claimed the address provided to DOS could not occupy. Furthermore, the DOS
alleged that Wertheim provided false infor- was accurate, but he had not moved into the also found Wertheim violated Real Property
mation to the DOS, failed to notify DOS of property yet as he was waiting for a certifi- Law §442-e(5) by failing to cooperate with
a change of address and failed to cooperate cate of occupancy. Wertheim also disclosed a DOS investigation. The DOS imposed a
in a DOS investigation. that he did not have a lease for the property $1,000 fine against Wertheim and suspended
he was claiming as his office. In fact, the his license until such time as 1) the fine is
On August 5, 2009, Wertheim was sent a DOS investigator found that the property paid and 2) he provided proof as to the ad-
letter by the DOS in reference to a matter was still listed with another broker for rent. dress where the brokerage is operating.
concerning Wertheim’s broker’s license. The
investigator that sent the letter did so using DOS found that Wertheim violated the Real DOS v. Gary D. Wertheim and Real Property
the business address Wertheim provided to Property Law §441-a(5) by failing to notify Data Network (410 DOS 10)
DOS on April 29, 2009 (a little more than
three months prior) as well as the address New bedbug law amends NYC administrative code
and P.O. box Wertheim listed with DOS
prior to the address change. The letter sent to
By Anthony Gatto, Esq., NYSAR Legal Counsel
the new address was returned as “attempted
not known; unable to forward.” The letter A new law signed by Gov. David Paterson There are some aspects of the law that have
sent to the previous address was returned amends the Administrative Code of the yet to be resolved. One such issue is whether
as “forwarding time expired” and the letter City of New York by requiring landlords or or not a cooperative board will be required to
sent to the old P.O. box was returned as “un- managing agents to disclose bedbug infes- supply the form when a new member of the
claimed.” After having no success in locating tations to potential tenants when signing a cooperative signs a proprietary lease.
Until
Wertheim, the DOS investigator visited the lease for residential property in New York such time as this issue is resolved, it is rec-
new registered address for Wertheim and City only (the law does not apply to the rest ommended that such a form be furnished.
found a vacant storefront that showed no of the state). Furthermore, the law places no obligation on
evidence of any real estate broker having tenants to disclose the presence of bedbugs
occupied the property. After inquiring Under the new law, a landlord or managing to the landlord or managing agent. This is
with some neighbors, it was discovered the agent is required to provide each new tenant problematic since the la
Preview
FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 65 HL OPP. - EXHIBIT 65 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 New York State Association of REALTORS" A risk management tool LEGALLINES for New York's REALTORS" THIRD QUARTER 2010 Governor Paterson signs landmark agency disclosure bill By Anthony Gatto, Esq., NYSAR Legal Counsel On August 30, 2010, Gov. David Paterson seller is represented by the seller's agent, (and advanced consent to dual agency with signed a bill into law amending Real Prop- dual agency arises:' This position meant designated sales agents) once an agency erty Law §443 to add two new components that dual agency was transactional in nature relationship is established at first substan- to the agency disclosure law relating to (in other words, dual agency cannot be tive contact. advanced consent to dual agency and consented to until such time as it actually agency disclosure for condominiums and arises) and advanced consent to the same When dual agency is discussed with the cooperative apartments/units. The new law was prohibited. By taking such client, the client will then be and required forms do not take effect until a position, the DOS required able to indicate their consent January 1, 2011. that dual agency be consented New York News to dual agency in advance by to prior to an in-house showing indicating the same on the new Under the new law, sellers, landlords, buyers of a listed property. agency disclosure form. Ad- and tenants are permitted to consent to dual vanced consent to dual agency agency or dual agency with designated sales It was NYSAR's opinion that by not permit- with designated sales agents can be done agents in advance by indicating the same on ting advanced consent to dual agency, the in the same manner. The only difference is a new revised agency disclosure form. consumer was the only party being penal- that the seller, landlord, buyer or tenant will ized.Without the option to consent to dual be able to designate a specific licensee as a The concept of advanced consent to dual agency in advance, the consumer would be designated agent should it arise. It is not agency has been around for quite some time, required to sign numerous agency disclosure required that both designated agents are but was not permitted under the Real Prop- forms every time another buyer's agent from filled in when advanced consent is given. In erty Law. The New York State Department of the listing brokerage wanted to show the other words, when a seller consents to dual State, Division of Licensing Services (DOS) property to a buyer-client. Often, the buyer agency with designated sales agents in ad- issued a legal memorandum directly on point would be unable to view a property because vance, it is likely that the seller will designate with this issue. According to "Legal Memo- the seller was unavailable at the time. Fur- their listing agent (unless the listing agent is randum LI12: Be Wary of Dual Agency,' dual thermore, sellers were often confused as to the principal broker since principal brokers agency typically arose in the following way: the reason why they were required to sign are prohibited from acting as a designated a real estate broker employs two salespeople, numerous forms. agent). Likewise, a buyer will most likely one who works for the buyer as a buyer's designate their buyer's agent as their desig- agent and the other who works for the seller Advanced consent to dual agency ( and nated agent (except in the instance where the as a seller's agent. The real estate broker andadvanced consent to dual agency with des- buyer's agent is the principal). Once dual his salespeople are "one and the same" entity ignated sales agents) should not be utilized agency with designated sales agents arises, when analyzing whether dual agency exists. by licensees until January 1, 2011 when the both sides will know the identity of the other The memorandum goes one step further by law becomes effective. On or after January designated agent. 1, 2011, licensees will be able to have their expressly stating: "As soon as the buyer's agent introduces the buyer to property in which the respective clients consent to dual agency In discussions with the Department ofState, NYSAR has clarified the responsibility of a licensee once dual agency or dual agency If dual with designated sales agents arises. The new agency disclosure forms are available in this issue agency arisesas aresultof a showing, the licensee is not required to notify the seller and the legal section of NYSAR.com. These forms should not immediately since the seller should reason- be used until January 1, 2011. ably presume that dual agency showings will occur during the time of the listing. See Dislosure, page 2 HL OPP. - EXHIBIT 65 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 •k4dii Disclosure: Law allows advanced consent to dual agency continuectrrompage1 However, it is highly recommended that of a licensee's agency status. at first substantive contact pursuant to Real the seller be informed as to all instances of Property Law §443(3)(a-c). dual agency that are the result of a showing. Licensees should be aware that dual This notification can be done via telephone, agency must be discussed with the seller Prior to the passage of this bill, Real Property e-mail (using the address provided by the and/or buyer at the onset of discussions Law §443( l)(f) specifically exempted condo- seller), fax (using the fax number provided concerning agency. The law specifically miniums and cooperative apartments/units by the seller) or by letter. As always, NYSAR states that the client is giving consent to from the requirement ofproviding an agency recommends all notices be in writing so the "advanced informed consent:' This means disclosure form. Only licensees having licensee will have documented proof of any the client must be fully informed as to substantive contact with a seller, landlord, such notification. all aspects of dual agency. Clients need buyer or tenant of a 1-4 family dwelling were to be fully informed as to the fiduciary required to provide the agency disclosure After dual agency arises, if a potential pur- obligations they will be losing by agreeing form to those individual(s). With the re- chaser begins negotiations of any type, it is to dual agency as well. Licensees must moval of the exemption and the inclusion of required that the licensee contact the seller make it perfectly clear what the client is condominiums and cooperative apartments/ and inform them that there is a dual agency consenting to and how it will affect the units, licensees will be required to provide situation where the buyer is showing inter- representation they are receiving from the the agency disclosure form for all 1-4 fam- est in the property. Again, this notification licensee. Failure to do so can be consid- ily dwellings as well as condominiums and can be done via telephone, e-mail (using the ered a violation of Article 12-A of the Real cooperative apartments/units. address provided by the seller), fax (using Property Law and may subject the licensee the fax number provided by the seller) or by to DOS disciplinary action. The new forms are also available in the legal letter. In order to minimize the potential section of NYSAR.com, but should not be for liability, all notices should be in writingNew law requires disclosure for used until January 1, 2011. and made at the time of negotiations or condominiums and cooperative immediately thereafter. If a dual agency apartments/units showing results in the presentation of a Under the new law, condominiums and co- purchase offer, it is recommended that the operative apartments/units are added in the signed agency disclosure forms be attached definition of residential real property as it re- to the purchase offer so it is clear to the seller and buyer that the transaction is dual agency lates to agency disclosure. This change now in nature. There is nothing prohibiting a requires real estate licensees representing a seller, landlord, buyer or tenant of a condo- licensee from having their client(s) execute minium or cooperative apartment/unit to be a new agency disclosure form at the time of presented with the agency disclosure form contract to memorialize their understanding Visit the NYSAR Media Center at NYSAR.com for webinars covering key legal topics including: • Complying with the Commission Escrow Act • Do-Not-Call compliance • The duty to disclose a stigmatized property • And much more Visit www.nysar.com today. HL OPP. - EXHIBIT 65 - PAGE 3 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 PAGE 3 NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER THIS IS NOT A CONTRACT New York state law requires real estate licensees who to account. A buyer's agent does not represent the are acting as agents of buyers or sellers of property to interests of the seller. The obligations of a buyer's advise the potential buyers or sellers with whom they agent are also subject to any specific provisions set work of the nature of their agency relationship and forth in an agreement between the agent and the buy- the rights and obligations it creates. This disclosure er. In dealings with the seller, a buyer's agent should will help you to make informed choices about your (a) exercise reasonable skill and care in performance relationship with the real estate broker and its sales of the agent's duties; (b) deal honestly, fairly and in agents. good faith; and (c) disclose all facts known to the agent materially affecting the buyer's ability and/or Throughout the transaction you may receive more willingness to perform a contract to acquire seller's than one disclosure form. The law may require each property that are not inconsistent with the agent's fi- agent assisting in the transaction to present you with duciary duties to the buyer. this disclosure form. A real estate agent is a person qualified to advise about real estate. BROKER'S AGENTS If you need legal, tax or other advice, consult with a A broker's agent is an agent that cooperates or is en- professional in that field. gaged by a listing agent or a buyer's agent (but does not work for the same firm as the listing agent or DISCLOSURE REGARDING REAL ESTATE buyer's agent) to assist the listing agent or buyer's AGENCY RELATIONSHIPS agent in locating a property to sell or buy, respective- ly, for the listing agent's seller or the buyer agent's SELLER'S AGENT buyer. The broker's agent does not have a direct rela- A seller's agent is an agent who is engaged by a seller tionship with the buyer or seller and the buyer or sel- to represent the seller's interests. The seller's agent ler cannot provide instructions or direction directly to does this by securing a buyer for the seller's home at the broker's agent. The buyer and the seller therefore a price and on terms acceptable to the seller. A sel- do not have vicarious liability for the acts of the bro- ler's agent has, without limitation, the following fidu- ker's agent. The listing agent or buyer's agent do pro- ciary duties to the seller: reasonable care, undivided vide direction and instruction to the broker's agent loyalty, confidentiality, full disclosure, obedience and and therefore the listing agent or buyer's agent will duty to account. A seller's agent does not represent have liability for the acts of the broker's agent. the interests of the buyer. The obligations of a seller's agent are also subject to any specific provisions set DUAL AGENT forth in an agreement between the agent and the sel- A real estate broker may represent both the buyer and ler. In dealings with the buyer, a seller's agent should the seller if both the buyer and seller give their in- (a) exercise reasonable skill and care in performance formed consent in writing. In such a dual agency sit- of the agent's duties; (b) deal honestly, fairly and in uation, the agent will not be able to provide the full good faith; and (c) disclose all facts known to the range of fiduciary duties to the buyer and seller. The agent materially affecting the value or desirability of obligations of an agent are also subject to any specif- property, except as otherwise provided by law. ic provisions set forth in an agreement between the agent, and the buyer and seller. An agent acting as a BUYER'S AGENT dual agent must explain carefully to both the buyer A buyer's agent is an agent who is engaged by a buy- and seller that the agent is acting for the other party er to represent the buyer's interests. The buyer's agent as well. The agent should also explain the possible does this by negotiating the purchase of a home at a effects of dual representation, including that by con- price and on terms acceptable to the buyer. A buyer's senting to the dual agency relationship the buyer and agent has, without limitation, the following fiduciary seller are giving up their right to undivided loyalty. A duties to the buyer: reasonable care, undivided loyal- buyer or seller should carefully consider the possible ty, confidentiality, full disclosure, obedience and duty consequences of a dual agency relationship before HL OPP. - EXHIBIT 65 - PAGE 4 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 PAGE 4 agreeing to such representation. A seller or buyer the interests of and advocating on behalf of the buyer may provide advance informed consent to dual agen- and the designated sales agent for the seller will func- cy by indicating the same on this form. tion as the seller's agent representing the interests of and advocating on behalf of the seller in the negotia- DUAL AGENT WITH DESIGNATED SALES tions between the buyer and seller. A designated sales AGENTS agent cannot provide the full range of fiduciary duties to the buyer or seller. The designated sales agent If the buyer and the seller provide their informed must explain that like the dual agent under whose consent in writing, the principals and the real estate supervision they function, they cannot provide undi- broker who represents both parties as a dual agent vided loyalty. A buyer or seller should carefully con- may designate a sales agent to represent the buyer sider the possible consequences of a dual agency re- and another sales agent to represent the seller to ne- lationship with designated sales agents before agree- gotiate the purchase and sale of real estate. A sales ing to such representation. A seller or buyer may agent works under the supervision of the real estate provide advance informed consent to dual agency broker. With the informed consent of the buyer and with designated sales agents by indicating the same the seller in writing, the designated sales agent for the on this form. buyer will function as the buyer's agent representing This form was provided to me by _________________________________________ (print name of licensee) of _______________________________ (print name of company, firm or brokerage), a licensed real estate broker acting in the interest of the: ( ) Seller as a (check relationship below) ( ) Buyer as a (check relationship below) ( ) Seller's agent ( ) Buyer's agent ( ) Broker's agent ( ) Broker's agent ( ) Dual agent ( ) Dual agent with designated sales agents For advance informed consent to either dual agency or dual agency with designated sales agents complete sec- tion below: ( ) Advance informed consent dual agency ( ) Advance informed consent to dual agency with designated sales agents If dual agent with designated sales agents is indicated above: _________________________________ is appointed to represent the buyer; and _________________________________ is appointed to represent the seller in this transaction. (I)(We) acknowledge receipt of a copy of this disclosure form: Signature of Buyer(s) and/or Seller(s): ______________________________ ______________________________ ______________________________ ______________________________ Date:__________________________ Date:__________________________ HL OPP. - EXHIBIT 65 - PAGE 5 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 PAGE 5 NEW YORK STATE DISCLOSURE FORM FOR LANDLORD AND TENANT THIS IS NOT A CONTRACT New York state law requires real estate licensees who agent does not represent the interest of the landlord. are acting as agents of landlords and tenants of real The obligations of a tenant's agent are also subject to property to advise the potential landlords and tenants any specific provisions set forth in an agreement be- with whom they work of the nature of their agency tween the agent and the tenant. In dealings with the relationship and the rights and obligations it creates. landlord, a tenant's agent should (a) exercise reasona- This disclosure will help you to make informed ble skill and care in performance of the agent's duties; choices about your relationship with the real estate (b) deal honestly, fairly and in good faith; and (c) broker and its sales agents. disclose all facts known to the tenant's ability and/or willingness to perform a contract to rent or lease lan- Throughout the transaction you may receive more dlord's property that are not inconsistent with the than one disclosure form. The law may require each agent's fiduciary duties to the buyer. agent assisting in the transaction to present you with this disclosure form. A real estate agent is a person BROKER'S AGENTS qualified to advise about real estate. If you need le- gal, tax or other advice, consult with a professional in A broker's agent is an agent that cooperates or is en- that field. gaged by a listing agent or a tenant's agent (but does not work for the same firm as the listing agent or te- DISCLOSURE REGARDING REAL ESTATE nant's agent) to assist the listing agent or tenant's AGENCY RELATIONSHIPS agent in locating a property to rent or lease for the LANDLORD'S AGENT listing agent's landlord or the tenant agent's tenant. A landlord's agent is an agent who is engaged by a The broker's agent does not have a direct relationship landlord to represent the landlord's interest. The lan- with the tenant or landlord and the tenant or landlord dlord's agent does this by securing a tenant for the cannot provide instructions or direction directly to the landlord's apartment or house at a rent and on terms broker's agent. The tenant and the landlord therefore acceptable to the landlord. A landlord's agent has, do not have vicarious liability for the acts of the bro- without limitation, the following fiduciary duties to ker's agent. The listing agent or tenant's agent do pro- the landlord: reasonable care, undivided loyalty, con- vide direction and instruction to the broker's agent fidentiality, full disclosure, obedience and duty to and therefore the listing agent or tenant's agent will account. A landlord's agent does not represent the have liability for the acts of the broker's agent. interests of the tenant. The obligations of a landlord's agent are also subject to any specific provisions set DUAL AGENT forth in an agreement between the agent and the lan- A real estate broker may represent both the tenant dlord. In dealings with the tenant, a landlord's agent and the landlord if both the tenant and landlord give should (a) exercise reasonable skill and care in per- their informed consent in writing. In such a dual formance of the agent's duties; (b) deal honestly, fair- agency situation, the agent will not be able to provide ly and in good faith; and (c) disclose all facts known the full range of fiduciary duties to the landlord and to the agent materially affecting the value or desira- the tenant. The obligations of an agent are also sub- bility of property, except as otherwise provided by ject to any specific provisions set forth in an agree- law. ment between the agent, and the tenant and landlord. An agent acting as a dual agent must explain careful- TENANT'S AGENT ly to both the landlord and tenant that the agent is A tenant's agent is an agent who is engaged by a te- acting for the other party as well. The agent should nant to represent the tenant's interest. The tenant's also explain the possible effects of dual representa- agent does this by negotiating the rental or lease of an tion, including that by consenting to the dual agency apartment or house at a rent and on terms acceptable relationship the landlord and tenant are giving up to the tenant. A tenant's agent has, without limitation, their right to undivided loyalty. A landlord and tenant the following fiduciary duties to the tenant: reasona- should carefully consider the possible consequences ble care, undivided loyalty, confidentiality, full dis- of a dual agency relationship before agreeing to such closure, obedience and duty to account. A tenant's representation. A landlord or tenant may provide ad- HL OPP. - EXHIBIT 65 - PAGE 6 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 PAGE 6 vance informed consent to dual agency by indicating landlord will function as the landlord's agent the same on this form. representing the interests of and advocating on behalf of the landlord in the negotiations between the tenant DUAL AGENT WITH DESIGNATED SALES and the landlord. A designated sales agent cannot AGENTS provide the full range of fiduciary duties to the lan- dlord or tenant. The designated sales agent must ex- If the tenant and the landlord provide their informed plain that like the dual agent under whose supervision consent in writing, the principals and the real estate they function, they cannot provide undivided loyalty. broker who represents both parties as a dual agent A landlord or tenant should carefully consider the may designate a sales agent to represent the tenant possible consequences of a dual agency relationship and another sales agent to represent the landlord. A with designated sales agents before agreeing to such sales agent works under the supervision of the real representation. A landlord or tenant may provide ad- estate broker. With the informed consent in writing of vance informed consent to dual agency with desig- the tenant and the landlord, the designated sales agent nated sales agents by indicating the same on this for the tenant will function as the tenant's agent form. representing the interests of and advocating on behalf of the tenant and the designated sales agent for the This form was provided to me by _________________________________________ (print name of licensee) of _______________________________ (print name of company, firm or brokerage), a licensed real estate broker acting in the interest of the: ( ) Landlord as a (check relationship below) ( ) Tenant as a (check relationship below) ( ) Landlord’s agent ( ) Tenant's agent ( ) Broker's agent ( ) Broker's agent ( ) Dual agent ( ) Dual agent with designated sales agents For advance informed consent to either dual agency or dual agency with designated sales agents complete sec- tion below: ( ) Advance informed consent dual agency ( ) Advance informed consent to dual agency with designated sales agents If dual agent with designated sales agents is indicated above: _________________________________ is appointed to represent the tenant; and _________________________________ is appointed to represent the landlord in this transaction. (I)(We) acknowledge receipt of a copy of this disclosure form: Signature of Landlord(s) and/or Tenant(s): ______________________________ ______________________________ ______________________________ ______________________________ Date:__________________________ Date:__________________________ HL OPP. - EXHIBIT 65 - PAGE 7 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 42.\dD Broker loses commission for lack of an extension clause NYSAR Legal Hotline call report By Anthony Gatto, Esq., second quarter 2010 NYSAR Legal Counsel In United Real Estate & Property Manage- ment, Inc. v.Charnyshov and Yablons- HOTLINE ISSUES kaya, the issue of a disputed commission between a licensee and consumer was • COMMISSION decided based on representations made • LICENSE LAW in a signed listing agreement. • FAIR HOUSING On April l, 2006, United entered into an a CONTRACT exclusive right to sell listing agreement with a DISCLOSURE Chrnyshov and Yablonskaya (defendants) for a period ending on July l, 2006. Prior to the • AGENCY termination of the listing agreement, an agent of the defendantd procured a purchaser that was willing to purchase the listed property. The purchaser did not sign a purchase contract ------2% • • • Dos REFERRALS ARBITRATION prior to the expiration of the listing agreement. • CODE OF ETHICS On July 2, 2006 (one day after listing expired), • BOARD/ASSOCIATION United entered into another exclusive right to a MLS sell agreement with Maximillion Realty for the same property. Maximillion advised the • OTHER HOTLINE ISSUE defendants to lower the asking price of their property. On July 5, 2006, defendants entered into a purchase contract with the buyers that ISSUES were originally "willing' to purchase the prop- COMMISSION 102 12% erty under the prior listing agreement with United. Upon closing, Maximillion received LICENSE LAW 11 0 13% the commission for the sale.The defendant FAIRHOUSING 19 2% initiated the lawsuit to recover the commis- CONTRACT 205 25% sion they believed they were entitled to as the DISCLOSURE 11 5 14% procuring cause of the sale. AGENCY 54 7% DOS 21 3% In New York, a broker can only make a REFERRALS 15 2% claim for commissions when: 1) the broker ARBITRATION 10 1% is licensed; 2) the broker had a contract, CODEOF ETHICS 11 1% expressed or implied, with the party to be BOARD/ ASSOCIATION 12 1% charged with paying the commission; and MLS 48 6% 3) the broker was the procuring cause of the OTHERHOTLINE ISSUE 102 12% sale. It is uncontested that the defendant secured the buyers that were ready, willing TOTAL ISSUES...................................... 824 and able to purchase the property prior to the expiration of the listing agreement. Since the contract was not signed until after the Average length of call: 11 minutes listing agreement expired, the court looked Average calls p er d ay: 14 to the language of the listing agreement to see if there was an extension clause. The NYSAR Legal Hotline is available to members by calling 518-436-9727 Monday through Thursday from 9 a.m. to 1 p.m. The court examined extension clauses and the common language found in them. Un- See Commission, page 9 HL OPP. - EXHIBIT 65 - PAGE 8 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 know wllat rd do with.DUil Al[ ,d.DJ:i'1l NYSAll's legal Hotline! ... Jt provides immediate and acm.rate B1ILSWeIB to many qm.eatlcu ....g, ~ ~ . N ' r ~R.....rfr, 9 PJJ HL OPP. - EXHIBIT 65 - PAGE 9 FILED: WESTCHESTER COUNTY CLERK 12/06/2021 05:33 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1030 RECEIVED NYSCEF: 12/06/2021 PAGE 9 Indicating unoccupied address on license application cost broker $1,000 By Anthony Gatto, Esq., NYSAR Legal Counsel In the case of the New York State Depart- Wertheim contacted DOS six weeks after the DOS as to the actual address of the broker- ment of State v. Gary D. Wertheim and Real letters were sent out and returned. Wert- age and supplying an address he did not and Property Data Network (Wertheim) it was heim claimed the address provided to DOS could not occupy. Furthermore, the DOS alleged that Wertheim provided false infor- was accurate, but he had not moved into the also found Wertheim violated Real Property mation to the DOS, failed to notify DOS of property yet as he was waiting for a certifi- Law §442-e(5) by failing to cooperate with a change of address and failed to cooperate cate of occupancy. Wertheim also disclosed a DOS investigation. The DOS imposed a in a DOS investigation. that he did not have a lease for the property $1,000 fine against Wertheim and suspended he was claiming as his office. In fact, the his license until such time as 1) the fine is On August 5, 2009, Wertheim was sent a DOS investigator found that the property paid and 2) he provided proof as to the ad- letter by the DOS in reference to a matter was still listed with another broker for rent. dress where the brokerage is operating. concerning Wertheim’s broker’s license. The investigator that sent the letter did so using DOS found that Wertheim violated the Real DOS v. Gary D. Wertheim and Real Property the business address Wertheim provided to Property Law §441-a(5) by failing to notify Data Network (410 DOS 10) DOS on April 29, 2009 (a little more than three months prior) as well as the address New bedbug law amends NYC administrative code and P.O. box Wertheim listed with DOS prior to the address change. The letter sent to By Anthony Gatto, Esq., NYSAR Legal Counsel the new address was returned as “attempted not known; unable to forward.” The letter A new law signed by Gov. David Paterson There are some aspects of the law that have sent to the previous address was returned amends the Administrative Code of the yet to be resolved. One such issue is whether as “forwarding time expired” and the letter City of New York by requiring landlords or or not a cooperative board will be required to sent to the old P.O. box was returned as “un- managing agents to disclose bedbug infes- supply the form when a new member of the claimed.” After having no success in locating tations to potential tenants when signing a cooperative signs a proprietary lease. Until Wertheim, the DOS investigator visited the lease for residential property in New York such time as this issue is resolved, it is rec- new registered address for Wertheim and City only (the law does not apply to the rest ommended that such a form be furnished. found a vacant storefront that showed no of the state). Furthermore, the law places no obligation on evidence of any real estate broker having tenants to disclose the presence of bedbugs occupied the property. After inquiring Under the new law, a landlord or managing to the landlord or managing agent. This is with some neighbors, it was discovered the agent is required to provide each new tenant problematic since the la