Friedman v. Paterson , 453 N.Y.S.2d 819 ( 1982 )

Mikoll, J. (dissenting).

I respectfully dissent. Charges of incompetency and untrustworthiness must be clear and definite so that an accused knows what he has to defend (Matter of Urban Realty v Cuomo, 72 AD2d 947; Partridge v Lomenzo, 37 AD2d 180). Though the complaint against petitioner gave sufficient notice of the section of the Real Property Law involved and upon which the charges were based, the complaint did not give petitioner adequate notice of the actions of petitioner which formed the basis of the findings against petitioner. The complaint recited the existence of the irrevocable purchase offer clause and then went on to charge that “they” (presumably Sommer and petitioner) had forced Rooney to pay $400 for the release and Sommer later paid Rooney $100. There was no allegation made of inadequate supervision or guidance on petitioner’s part. Since petitioner was not present at the transaction and therefore not liable for his salesperson’s alleged violation of article 12-A of the Real Property Law, it was reasonable for him to conclude that his affidavit to that effect was sufficient to deal with the charges. Petitioner was not given adequate notice that he would have to answer to a charge of inadequate supervision or guidance of his employee. The proceeding was constitutionally defective. The determination should be annulled.