Opinion
August 10, 1981
Proceeding pursuant to CPLR article 78 to review a determination of the Secretary of State, dated September 24, 1979 and made after a hearing, which found that petitioner had demonstrated untrustworthiness and revoked his real estate broker's license. Petition granted to the extent that the determination is modified, on the law, by vacating the penalty imposed. As so modified, determination confirmed, without costs or disbursements, petition otherwise dismissed on the merits and the matter is remitted to the Secretary of State for the imposition of a new penalty in accordance herewith. We find there was substantial evidence to sustain the charge against the petitioner. However, the penalty imposed, revocation of his license, is so disproportionate to his misconduct in light of all the circumstances to be shocking to one's sense of fairness (see Matter of Pell v. Board of Educ., 34 N.Y.2d 222). Petitioner has been a real estate broker for 27 years. There is no indication of prior violations committed by him. Accordingly we find that a three-month suspension is "the maximum penalty the record will sustain" (Rob Tess Rest. Corp. v. New York State Liq. Auth., 49 N.Y.2d 874, 876). Hopkins, J.P., Titone, Rabin and Weinstein, JJ., concur.