Opinion
March 15, 1971
Three separate proceedings pursuant to article 78 of the CPLR to review a determination of the Secretary of State of the State of New York, dated April 28, 1970 and made after a hearing, which revoked petitioners' real estate broker's licenses and any pending applications for renewal thereof, effective May 15, 1970. Determination as to petitioner Herbert Stroh annulled, on the law, with costs to said petitioner against respondents. Determination as to petitioners Gerald Cotter and Abraham Shatzman confirmed and petitions of said petitioners dismissed, on the merits, with a separate bill of costs to respondents against each of said petitioners. The finding of "untrustworthiness" as to petitioner Stroh (Real Property Law, § 441-c, subd. 1) is supported by no evidence in the record. There is no evidence that Stroh had a direct connection with the transactions in question or that he had knowledge of such transactions. As to him the proof is "insufficient and insubstantial" ( Matter of Chiaino v. Lomenzo. 26 A.D.2d 469, 473; Matter of Birch v. Lomenzo, 31 A.D.2d 835). We have reviewed the other arguments raised by petitioners and find them without merit. Hopkins, Munder, Martuscello and Latham, JJ., concur; Rabin, P.J., concurs in the annulment of the determination as to petitioner Stroh, but otherwise dissents and votes to annul the determination as to petitioners Cotter and Shatzman and to order a new hearing as to each of them, with the following memorandum: By notice dated September 4, 1969, petitioners were advised that a hearing would be held on September 13, 1969 with respect to the complaint which had been filed against them. They appeared by counsel, at whose request the matter was adjourned until October 1, 1969. The hearing was thereafter adjourned on a week-to-week basis at petitioners' request because of their counsel's trial engagement in a criminal action in the United States District Court, Southern District of New York. On November 24, 1969, while still involved with his case in the Federal court, counsel suffered a heart attack and was hospitalized. On December 11, 1969, a letter was written to counsel by an attorney for the respondent Department of State advising him that a final adjournment would be allowed until January 15, 1970 and suggesting that he make other arrangements with petitioners if he would not be available. On January 15, an attorney from counsel's office appeared before the hearing officer and requested an adjournment until counsel would be able to handle the case; and he submitted an affidavit by counsel's doctor which stated that counsel should not engage in legal activities until March, 1970. The request for an adjournment was opposed by the Department of State's attorney. Petitioners Shatzman and Stroh read statements insisting on their right to be represented by their ailing counsel and asking for a postponement of the hearing. Petitioner Cotter was not present because of his wife's illness. After the request for adjournment was denied by the hearing officer, petitioners excused themselves and were absent throughout the remainder of the proceedings. The hearing continued on January 15 and was adjourned until January 20. When the hearing was resumed none of the petitioners were present. The hearing officer asked the department's attorney whether petitioners had been informed of the adjourned meeting and the attorney replied, "No. I don't expect them here in view of the fact they withdrew from the first scheduled hearing." Predicated on the foregoing, it is my view that the letter from the department's attorney was an inadequate substitute for any official ruling by the hearing officer. In my opinion, petitioners had a right to make their application directly without anticipating that they had at that posture reached a point of no return and that they would not be afforded an opportunity to retain other counsel if their request for a further adjournment were denied. It appears to me that petitioner Cotter, who was not present because of his wife's illness, and petitioner Shatzman were not meaningfully and officially alerted with respect to the risk they would run if they persisted in not seeking other counsel to represent them. Accordingly, I conclude that the failure of the hearing officer to afford petitioners one final opportunity to retain other counsel, coupled with the fact that he proceeded with the second session of the hearing after having been apprised that petitioners had no notice thereof, offended due process and was tantamount to a deprivation of petitioners' right to counsel. Decisional law has evolved to the point of recognizing that such a right exists in administrative as well as criminal proceedings (cf. People ex rel. Menechino v. Warden, 27 N.Y.2d 376; Matter of New York State Comm. for Human Rights v. Landau Inds., 57 Misc.2d 918, 923-924). It has accordingly become an integral part of our concept of due process which has long been considered applicable to proceedings involving the deprivation of one's life, liberty or property, whether it be judicial, administrative or executive in nature ( Stuart v. Palmer, 74 N.Y. 183, 190-191; Matter of Vinson v. Greenburgh Housing Auth., 29 A.D.2d 338, 341, affd. 27 N.Y.2d 675). The opportunity to be heard would be of little, if any, avail if it did not include the right to be heard by counsel ( Matter of Williams v. White Plains Housing Auth., 62 Misc.2d 613, 619, affd. 35 A.D.2d 965).