Opinion
1209 TP 18–00072
11-16-2018
In the Matter of Ronald K. HORTMAN, Montclare Realty, Ltd. and JoAnne Panek Hortman, Petitioners, v. DIVISION OF LICENSING SERVICES, Respondent.
JOANNE PANEK HORTMAN, PETITIONER PRO SE. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT.
JOANNE PANEK HORTMAN, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (PATRICK A. WOODS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by an order of the Supreme Court, Erie County [John F. O'Donnell, J.], entered January 12, 2018) to review a determination of respondent. The determination revoked the license of petitioner JoAnne Panek Hortman as an individual real estate broker.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: JoAnne Panek Hortman (petitioner) commenced this CPLR article 78 proceeding seeking to annul a determination of respondent, a division of the New York State Department of State (Department) which, after a hearing, revoked petitioner's license as an individual real estate broker. Contrary to petitioner's contention, we conclude that the Department's determination that petitioner breached her fiduciary duties and demonstrated untrustworthiness and incompetency (see Real Property Law § 441–c[1][a] ) is supported by substantial evidence in the record (see Matter of Re/Max All–Pro Realty v. New York State Dept. of State, Div. of Licensing Servs., 292 A.D.2d 831, 832, 739 N.Y.S.2d 321 [4th Dept. 2002], lv denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). We further conclude that the penalty of revocation of petitioner's license is not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Goldberg v. Cortez–Vasquez, 94 A.D.3d 531, 532, 942 N.Y.S.2d 335 [1st Dept. 2012] ; Re/Max All–Pro Realty, 292 A.D.2d at 832, 739 N.Y.S.2d 321 ). We reject petitioner's contention that the Department's failure to abide by the time limits of 19 NYCRR 400.13(a) requires annulment of the determination. The time limitation is directory only, not mandatory (see Matter of G & S Mgt., Inc. v. Fiala, 94 A.D.3d 1577, 1578, 943 N.Y.S.2d 712 [4th Dept. 2012] ; Matter of Giambrone v. Grannis, 88 A.D.3d 1272, 1273, 930 N.Y.S.2d 735 [4th Dept. 2011] ; see generally Matter of Dickinson v. Daines, 15 N.Y.3d 571, 574–576, 915 N.Y.S.2d 200, 940 N.E.2d 905 [2010] ), and petitioner failed to show that she suffered substantial prejudice from the delay (see Dickinson, 15 N.Y.3d at 577, 915 N.Y.S.2d 200, 940 N.E.2d 905 ; Giambrone, 88 A.D.3d at 1273, 930 N.Y.S.2d 735 ). We have considered petitioner's remaining contention and conclude that it is without merit.