Apostol v. Department of State 23 A.D.2d 845

Determination of respondent Department and Secretary of State, dated December 31, 1964, revoking the real estate broker’s license of petitioner Apostol as representative of Midway Realty, Inc., revoking the real estate salesman’s license of petitioner Houlios, and suspending for two weeks the real estate broker’s license of petitioner Canariek as representative of Midway Realty, Inc., unanimously annulled, on the law, as to petitioner Canariek and is otherwise confirmed, with $30 costs and disbursements to petitioner Canariek against respondents, and with $30 costs and disbursements to respondents against petitioners Apostol and Houlios. The hearing officer’s finding that petitioners Apostol and Houlios had participated in a calculated plan to perpetrate a fraud upon a lending institution by creating the appearance of a substantial down payment on the purchase of real estate, when most of the down payment was in fact fictitious was supported by substantial evidence. The documents showing the existence of the fraudulent transaction were admitted in evidence. The prospective purchaser testified that Apostol and Houlios were present when the details of the transaction relating to the fictitious down payment were explained to him. Canariek was not present, however, and the hearing officer found insufficient evidence that Canariek had participated in or had actual knowledge of the fraudulent transaction. In the absence of participation in or of actual knowledge of the transaction or retention of its benefits his license should not have been suspended (Real Property Law, § 442-c). Since Apostol and Houlios did not make use of Canariek’s license in perpetrating the fraud the case is unlike Matter of Solk v. Department of State (286 App. Div. 178), where the court found that the licensee had sat idly by for a considerable period of time while the improper acts were committed. One can only speculate that Canariek probably knew of what his close associates were doing or did but speculation alone is no substitute for evidence. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.