Opinion
November 21, 1994
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The petitioner was denied renewal of his real estate salesperson's license and denied a real estate broker's license based upon the respondent's conclusion that the petitioner's prior criminal conviction for sexual misconduct rendered him, inter alia, "untrustworth[y]" within the meaning of Real Property Law § 441-c (1).
It is well settled that the Secretary of State has a "'wide discretion in determining what should be deemed untrustworthy conduct'" when deciding whether or not to revoke or suspend a real estate license on such a basis (Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 477; see also, Kostika v. Cuomo, 41 N.Y.2d 673; Matter of Schimkus v. Shaffer, 143 A.D.2d 418; Matter of Facey v Department of State, 132 A.D.2d 698; Matter of Grant Realty v Cuomo, 58 A.D.2d 251). In addition, the "[c]ourts have been wont to take cognizance of the flexibility inherent in the term 'untrustworthiness' and have been careful not to fashion rigid definitions thereof" (Matter of Schimkus v. Shaffer, supra, at 421, citing Matter of Gold v. Lomenzo, 29 N.Y.2d, supra, at 476).
Contrary to the petitioner's contentions, the language of Real Property Law § 441-c does not specifically limit a finding of untrustworthiness to only those situations where the underlying acts or conduct are connected to real estate transactions (see, Matter of Eich v. Shaffer, 136 A.D.2d 701). The respondent's determination of "untrustworthiness" was supported by substantial evidence based upon the petitioner's criminal conviction, even though that conviction was unrelated to real estate transactions, since the conviction constituted "such relevant proof as a reasonable mind may accept as adequate to support the conclusion" (300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180).
Under the facts of this case, and upon consideration of the statutory factors to be considered concerning a previous criminal conviction, the issuance of the licenses sought by the petitioner "would involve an unreasonable risk to * * * the safety or welfare of * * * the general public" (Correction Law § 752; see also, § 753).
Bracken, J.P., Miller, Lawrence and Santucci, JJ., concur.