Real Property

ARTICLE 12-A
REAL ESTATE BROKERS AND REAL ESTATE SALESMEN
Section 440. Definitions.
440-a. License required for real estate brokers and salesmen.
440-b. Licenses in Putnam county.
441. Application for license.
441-a. License and pocket card.
441-b. License fees.
441-c. Revocation and suspension of licenses.
441-d. Salesman`s license suspended by revocation or
suspension of employer`s license.
441-e. Denial of license; complaints; notice of hearing.
441-f. Judicial review.
442. Splitting commissions.
442-a. Compensation of salesmen; restrictions.
442-b. Discontinuance or change of salesman`s association;
report.
442-c. Violations by salesmen; broker`s responsibility.
442-d. Actions for commissions; license prerequisite.
442-e. Violations.
442-f. Saving clause.
442-g. Nonresident licensees.
442-h. Rules of the secretary of state.
442-i. State real estate board.
442-j. Effect of invalid provision.
442-k. Powers and duties of the state real estate board.
442-l. After-the-fact referral fees.
443. Disclosure regarding real estate agency relationship;
form.
443-a. Disclosure obligations.

S 440. Definitions. 1. Whenever used in this article "real estate
broker" means any person, firm, limited liability company or
corporation, who, for another and for a fee, commission or other
valuable consideration, lists for sale, sells, at auction or otherwise,
exchanges, buys or rents, or offers or attempts to negotiate a sale, at
auction or otherwise, exchange, purchase or rental of an estate or
interest in real estate, or collects or offers or attempts to collect
rent for the use of real estate, or negotiates or offers or attempts to
negotiate, a loan secured or to be secured by a mortgage, other than a
residential mortgage loan, as defined in section five hundred ninety of
the banking law, or other incumbrance upon or transfer of real estate,
or is engaged in the business of a tenant relocator, or who,
notwithstanding any other provision of law, performs any of the above
stated functions with respect to the resale of condominium property
originally sold pursuant to the provisions of the general business law
governing real estate syndication offerings. In the sale of lots
pursuant to the provisions of article nine-A of this chapter, the term
"real estate broker" shall also include any person, partnership,
association or corporation employed by or on behalf of the owner or
owners of lots or other parcels of real estate, at a stated salary, or
upon a commission, or upon a salary and commission, or otherwise, to
sell such real estate, or any parts thereof, in lots or other parcels,
and who shall sell or exchange, or offer or attempt or agree to
negotiate the sale or exchange, of any such lot or parcel of real
estate. For purposes of this subdivision the term, "interest in real
estate" shall include the sale of a business wherein the value of the
real estate transferred as part of the business is not merely incidental
to the transaction, and shall not include the assignment of a lease, and
further, the transaction itself is not otherwise subject to regulation
under state or federal laws governing the sale of securities. In
connection with the sale of a business the term "real estate broker"
shall not include a person, firm or corporation registered pursuant to
the provisions of article twenty-three-A of the general business law or
federal securities laws.
2. "Associate real estate broker" means a licensed real estate broker
who shall by choice elect to work under the name and supervision of
another individual broker or another broker who is licensed under a
partnership, trade name, limited liability company or corporation. Such
individual shall retain his or her license as a real estate broker as
provided for in this article; provided, however, that the practice of
real estate sales and brokerage by such individual as an associate
broker shall be governed exclusively by the provisions of this article
as they pertain to real estate salesmen. Nothing contained herein shall
preclude an individual who elects to be licensed as an associate broker
from also retaining a separate real estate broker`s license under an
individual, partnership, trade name, limited liability company or
corporation.
3. "Real estate salesman" means a person associated with a licensed
real estate broker to list for sale, sell or offer for sale, at auction
or otherwise, to buy or offer to buy or to negotiate the purchase or
sale or exchange of real estate, or to negotiate a loan on real estate
other than a mortgage loan as defined in section five hundred ninety of
the banking law, or to lease or rent or offer to lease, rent or place
for rent any real estate, or collects or offers or attempts to collect
rent for the use of real estate for or in behalf of such real estate
broker, or who, notwithstanding any other provision of law, performs any
of the above stated functions with respect to the resale of a
condominium property originally sold pursuant to the provisions of the
general business law governing real estate syndication offerings.
4. "Tenant relocator" means any person, firm, corporation,
partnership, limited liability company or any legal entity whatsoever,
which, for another and for a fee, commission or other valuable
consideration, supervises, organizes, arranges, coordinates, handles or
is otherwise in charge of or responsible for the relocation of
commercial or residential tenants from buildings or structures that are
to be demolished, rehabilitated, remodeled or otherwise structurally
altered.
5. "Association, associated; or associated with" whenever used in this
article shall be deemed to make reference to a salesman`s relationship
with his or her broker. Nothing in this article shall be deemed or
construed to be indicative or determinative of the legal relationship of
a salesperson to a broker nor shall any provision of this article be
deemed or construed to alter or otherwise affect the legal
responsibility of a real estate broker to third parties for the acts of
anyone associated with such broker pursuant to this article.

S 440-a. License required for real estate brokers and salesmen. No
person, co-partnership, limited liability company or corporation shall
engage in or follow the business or occupation of, or hold himself or
itself out or act temporarily or otherwise as a real estate broker or
real estate salesman in this state without first procuring a license
therefor as provided in this article. No person shall be entitled to a
license as a real estate broker under this article, either as an
individual or as a member of a co-partnership, or as a member or manager
of a limited liability company or as an officer of a corporation, unless
he or she is nineteen years of age or over, a citizen of the United
States or an alien lawfully admitted for permanent residence in the
United States. No person shall be entitled to a license as a real
estate salesman under this article unless he or she is over the age of
eighteen years. No person shall be entitled to a license as a real
estate broker or real estate salesman under this article who has been
convicted in this state or elsewhere of a felony, and who has not
subsequent to such conviction received executive pardon therefor or a
certificate of good conduct from the parole board, to remove the
disability under this section because of such conviction. No person
shall be entitled to a license as a real estate broker or real estate
salesman under this article who does not meet the requirements of
section 3-503 of the general obligations law.
Notwithstanding the above, tenant associations, and not-for-profit
corporations authorized in writing by the commissioner of the department
of the city of New York charged with enforcement of the housing
maintenance code of such city to manage residential property owned by
such city or appointed by a court of competent jurisdiction to manage
residential property owned by such city shall be exempt from the
licensing provisions of this section with respect to the properties so
managed.

S 440-b. Licenses in Putnam county. On and after the first day of
July, nineteen hundred thirty-four, no person, copartnership or
corporation shall engage in or follow the business or occupation of, or
hold himself or itself out temporarily or otherwise as a real estate
broker or real estate salesman in the county of Putnam, without first
procuring a license therefor as provided in this article, except that
such license in such county shall be granted and issued, without the
written examination provided in this article, to a person, copartnership
or corporation who was engaged in business as a real estate broker or
real estate salesman in such county prior to the first day of January,
nineteen hundred thirty-four.

S 441. Application for license. 1. Form. (a) Any person,
copartnership, limited liability company or corporation desiring to act
as a real estate broker or any person desiring to act as a real estate
salesman on or after the first day of October, nineteen hundred
twenty-two, shall file with the department of state at its office in
Albany an application for the kind of license desired, in such form and
detail as such department shall prescribe and conforming to the
requirements of section 3-503 of the general obligations law, setting
forth the following, if the application be for a broker`s license:
(i) The name and residence address of the applicant, and if an
individual the name under which he intends to conduct business.
(ii) If the applicant be a copartnership the name and residence
address of each member thereof and the name under which the business is
to be conducted; or, if the applicant be a limited liability company,
the name of the company, and the name and residence of each of its
members; or, if the applicant be a corporation, the name of the
corporation and the name and residence address of each of its officers.
(iii) The place or places, including the city, town or village, with
the street and number, where the business is to be conducted.
(iv) The business or occupation theretofore engaged in by the
applicant, or, if a copartnership, by each member thereof, or, if a
limited liability company, by each member thereof, or, if a corporation,
by each officer thereof, for a period of two years, immediately
preceding the date of such application, setting forth the place or
places where such business or occupation was engaged in and the name or
names of employers, if any.
(v) The form, information and statement required by section 3-503 of
the general obligations law.
(b) Such further information as the department may reasonably require
shall be furnished by the applicant including sufficient proof of having
taken and passed a written examination and answered such questions as
may be prepared by the department to enable it to determine the
trustworthiness of the applicant if an individual, or of each member of
a co-partnership or each member of a limited liability company or each
officer of a corporation for whom a license as a broker is asked, and
his or their competency to transact the business of real estate broker
in such a manner as to safeguard the interests of the public. In
determining competency, the department shall require proof that the
person being tested to qualify to apply for a broker`s license has a
fair knowledge of the English language, a fair understanding of the
general purposes and general legal effect of deeds, mortgages, land
contracts of sale, and leases, a general and fair understanding of the
obligations between principal and agent, as well as of the provisions of
this section. The applicant must also furnish proof that he has attended
for at least ninety hours and has successfully completed a real estate
course or courses approved by the secretary of state as to method and
content and supervision which approval may be withdrawn if in the
opinion of the secretary of state said course or courses are not being
conducted properly as to method, content and supervision, and that
either the applicant has actively participated in the general real
estate brokerage business as a licensed real estate salesman under the
supervision of a licensed real estate broker for a period of not less
than one year or has had the equivalent experience in general real
estate business for a period of at least two years, the nature of which
experience shall be established by affidavit duly sworn to under oath
and/or other and further proof required by the department of state.
(c) In the event the applicant shall be a licensed salesman under this
article and shall have submitted acceptable proof pursuant to the
provisions of either paragraph (d) of subdivision one-A of this section
or paragraph (a) of subdivision three of this section of having attended
and successfully completed forty-five hours of an approved real estate
course or courses within four years of the date of the application, the
department may accept and credit same against the ninety hours required
hereunder.
1-A. (a) Every application for a real estate salesman`s license shall
set forth:
(i) The name and residence address of the applicant.
(ii) The name and principal business address of the broker with whom
he is to be associated.
(iii) The business or occupation engaged in for the two years
immediately preceding the date of the application, setting forth the
place or places where such business or occupation was engaged in, and
the name or names of employers if any.
(iv) The length of time he has been engaged in the real estate
business.
(v) The form, information and statement required by section 3-503 of
the general obligations law.
(b) Each applicant for a salesman`s license shall provide such further
information as the department may reasonably require, appearing at such
time and place as may be designated by the department, to take a written
examination and answer such questions as may be prepared by the
department to enable it to determine the trustworthiness of the
applicant and the applicant`s competence to transact the business of
real estate salesman in such a manner as to safeguard the interests of
the public, including the applicant`s working knowledge of the basic
concepts of law pertaining to contracts, real property, agency and this
article which govern conduct of such business, mastery of basic skills
needed to perform the applicant`s duties, working knowledge of the
ethical obligations of a real estate salesman, and knowledge of the
provisions of the general obligations law pertaining to performance of
the applicant`s duties.
(c) Each application for either a broker`s or salesman`s license under
this article shall be subscribed by the applicant; or if made by a
co-partnership it shall be subscribed by a member thereof, or if made by
a corporation it shall be subscribed by an officer thereof, and shall
conform to the requirements of section 3-503 of the general obligations
law. Each application shall contain an affirmation by the person so
subscribing that the statements therein are true under the penalties of
perjury. An application for a license shall be accompanied by the
appropriate license fee, as hereinafter prescribed in this article.
(d) Anything to the contrary herein notwithstanding, on and after the
effective date of this paragraph, no salesman`s license or conditional
license shall be issued by the department unless the application
therefor has been accompanied by proof that prior to such application
the applicant has attended at least forty-five hours and successfully
completed a real estate course or courses approved by the secretary of
state as to method and content and supervision, which approval may be
withdrawn if in the opinion of the secretary of state said course or
courses are not properly conducted as to method, content and
supervision.
2. Renewals. Any license granted under the provision hereof may be
renewed by the department upon application therefor by the holder
thereof, in such form as the department may prescribe and conforming to
the requirements of section 3-503 of the general obligations law, and
payment of the fee for such license. In case of application for renewal
of license, the department may dispense with the requirement of such
statements as it deems unnecessary in view of those contained in the
original application for license but may not dispense with the
requirements of section 3-503 of the general obligations law. A renewal
period within the meaning of this act is considered as being a period of
two years from the date of expiration of a previously issued license.
The department shall require any applicant, who does not apply for
renewal of license within such period, to qualify by passing the written
examination as provided herein, and may require any licensee who has not
yet passed the written examination, and who cannot reasonably prove to
the satisfaction of the department, that he can meet the competency
requirements, to pass the written examination before a renewal of
license shall be granted; provided, however, that a person who failed or
was unable to renew his license by reason of his induction or enlistment
in the armed forces of the United States shall not be required to take
or pass such examination.
3. (a) No renewal license shall be issued any licensee under this
article for any license period commencing November first, nineteen
hundred ninety-five unless such licensee shall have within the two year
period immediately preceding such renewal attended at least twenty-two
and one-half hours and successfully completed a continuing education
real estate course or courses approved by the secretary of state as to
method, content and supervision, which approval may be withdrawn if in
the opinion of the secretary of state such course or courses are not
being conducted properly as to method, content and supervision. The
licensee shall provide an affidavit, in a form acceptable to the
department of state, establishing the nature of the continuing education
acquired and shall provide such further proof as required by the
department of state. The provisions of this paragraph shall not apply to
any licensed real estate broker who is engaged full time in the real
estate business and who has been licensed under this article for at
least fifteen consecutive years immediately preceding such renewal.
(b) Notwithstanding the provisions of section four hundred one of the
state administrative procedure act, except as provided in this
paragraph, no license issued under this article shall continue in effect
beyond the period for which it is issued if the proof of attendance
required hereunder is not submitted and accepted prior to such
expiration date. The department in its discretion may however issue a
temporary renewal license for such period of time it deems appropriate
to permit the submission of the required proof of attendance when the
failure to submit such proof is not due to the fault of the licensee.
(c) The secretary of state shall promulgate rules establishing the
method, content, setting and supervision requirements of the continuing
education real estate course or courses provided for in this section. In
establishing the requirements for the continuing education course or
courses, the secretary of state shall permit alternatives with respect
to content and method of presentation in consideration of the type of
brokerage practiced and the availability of the sources of such course
or courses in different areas of the state. Each course shall have an
established curriculum composed primarily of real estate practice and
professional responsibility and ethics and properly prepared written
materials of the subject matter which shall be distributed as part of
the course. It shall be taught by a qualified faculty with attorneys
presenting legal subjects. Credit shall be awarded on the basis of one
hour for each sixty minutes of actual attendance and records shall be
maintained of attendance at each session which shall be transmitted to
the department at the conclusion of the course. Computer-based and
distance learning courses may be approved by the department so long as
providers demonstrate the ability to monitor and verify participation by
the licensee for the specified time period.
(d) The state real estate board, created pursuant to section four
hundred forty-two-i of this article, shall not have the power to
promulgate any rule, regulation or guidance requiring continuing
education for real estate brokers or salespeople except those
requirements set forth in subdivisions two and three of section four
hundred forty-two-k of this article.
4. The fees provided for by this section shall not be refundable.

S 441-a. License and pocket card. 1. The department of state, if
satisfied of the competency and trustworthiness of the applicant, shall
issue and deliver to him a license in such form and manner as the
department shall prescribe, but which must set forth the name and
principal business address of the licensee, and, in the case of a real
estate salesman, the name and business address of the broker with whom
the salesman is associated.
2. Terms. A license issued or reissued under the provisions of this
article shall entitle the person, co-partnership, limited liability
company or corporation to act as a real estate broker, or, if the
application is for a real estate salesman`s license, to act as a real
estate salesman in this state up to and including the thirty-first day
of October of the year in which the license by its terms expires.
3. Place of business; business sign required. Except as otherwise
provided in this article, each licensed real estate broker shall have
and maintain a definite place of business within this state, and shall
conspicuously post on the outside of the building in which said office
is conducted a sign of a sufficient size to be readable from the
sidewalk indicating the name and the business of the applicant as a
licensed real estate broker, unless said office shall be located in an
office, apartment or hotel building, in which event the name and the
words "licensed real estate broker" shall be posted in the space
provided for posting of names of occupants of the building, other than
the mail box. Where the applicant for a real estate broker`s license
maintains more than one place of business, the broker shall apply for
and the department shall issue a supplemental license for each branch
office so maintained upon payment to the department of state for each
supplemental license so issued the same fee prescribed in this article
for a license to act as a real estate broker. Such fee shall accompany
such application and shall be non-refundable. For purposes of this
subdivision, the principal residence of a real estate broker or salesman
shall not be deemed a place of business solely because such broker or
salesman shall have included the residence telephone number in his
business cards.
4. Display of license. The license of a real estate broker shall be
conspicuously displayed in his principal place of business at all times.
Licenses issued for branch offices shall be conspicuously displayed
therein. The display of a real estate broker`s license, the term whereof
has expired, by any person, partnership, limited liability company or
corporation not duly licensed as a real estate broker for the current
license term is prohibited.
5. Change of address. Notice in writing in the manner and form
prescribed by the department shall be given the department at its
offices in Albany by a licensed real estate broker on his own behalf and
on behalf of each salesman associated with him of any change in his or
its principal business address. The filing fee of ten dollars for each
licensee named therein shall accompany such notice. Such change by a
licensee without such notification shall operate to suspend his license
until such suspension shall be vacated by the department.
6. Pocket card. The department shall prepare, issue and deliver to
each licensee a pocket card in such form and manner as the department
shall prescribe, but which shall contain the name and business address
of the licensee, and, in the case of a real estate salesman, the name
and business address of the broker with whom he or she is associated and
shall certify that the person whose name appears thereon is a licensed
real estate broker or salesman, as may be. Such cards must be shown on
demand. In the case of loss, destruction or damage, the secretary of
state may, upon submission of satisfactory proof, issue a duplicate
pocket card upon payment of a fee of ten dollars.
7. License term. From and after the date when this subdivision shall
take effect, the term for which a license shall be issued or reissued
under this article shall be a period of two years.
8. Death of broker. A license issued to a real estate broker who was,
at the time of his death, the sole proprietor of a brokerage office may
be used after the death of such licensee by his duly appointed
administrator or executor in the name of the estate pursuant to
authorization granted by the surrogate under the provisions of the
surrogate`s court procedure act for a period of not more than one
hundred twenty days from the date of death of such licensee in order to
complete any unfinished realty transactions in the process of
negotiation by the broker or his salesmen existing prior to his decease.
There shall be endorsed upon the face of the license, after the name of
the decedent, the words "deceased", the date of death and the name of
the administrator or executor under whose authority the license is being
used. The period of one hundred twenty days may be extended upon
application to the secretary of state, for good cause shown, for an
additional period not to exceed one hundred twenty days. A license
expiring during such period or extension shall be automatically renewed
and continued in effect during such period or extension. No fee shall be
charged for any such license or renewal thereof.
9. Except for changes made on a renewal application, the fee for
changing an address on a license shall be ten dollars.
10. Except for changes made on a renewal application, the fee for
changing a name or for changing the status of a real estate broker`s
license shall be one hundred fifty dollars. The fee for changing a
salesperson`s name shall be fifty dollars.
11. If a real estate salesperson shall leave the service of a real
estate broker, the real estate broker shall file a termination of
association notice on such form as secretary may designate. The fee for
terminating the record of association shall be ten dollars. The
salesperson`s license may be endorsed to a new sponsoring broker upon
the establishment of a new record of association filed with the
department of state. The fee for filing a record of association shall be
ten dollars.

S 441-b. License fees. 1. The fee for a license issued or reissued
under the provisions of this article entitling a person, co-partnership,
limited liability company or corporation to act as a real estate broker
shall be one hundred fifty dollars. The fee for a license issued or
reissued under the provisions of this article entitling a person to act
as a real estate salesman shall be fifty dollars. Notwithstanding the
provisions of subdivision seven of section four hundred forty-one-a of
this article, after January first, nineteen hundred eighty-six, the
secretary of state shall assign staggered expiration dates for
outstanding licenses that have been previously renewed on October
thirty-first of each year from the assigned date unless renewed. If the
assigned date results in a term that exceeds twenty-four months, the
applicant shall pay an additional prorated adjustment together with the
regular renewal fee. The secretary of state shall assign dates to
existing licenses in a manner which shall result in a term of not less
than two years.
1-A. The fee for a person to take an examination offered by the
secretary of state pursuant to this article shall be fifteen dollars.
Fees collected by the department of state pursuant to this article shall
be deposited to the credit of the business and licensing services
account established pursuant to section ninety-seven-y of the state
finance law.
2. Corporations and co-partnerships. If the licensee be a corporation,
the license issued to it shall entitle the president thereof or such
other officer as shall be designated by such corporation, to act as a
real estate broker. For each other officer who shall desire to act as a
real estate broker in behalf of such corporation an additional license
expiring on the same date as the license of the corporation shall be
applied for and issued, as hereinbefore provided, the fee for which
shall be the same as the fee required by this section for the license to
the corporation. No license as a real estate salesman shall be issued to
any officer of a corporation nor to any manager or member of a limited
liability company nor to a member of a co-partnership licensed as a real
estate broker. If the licensee be a co-partnership the license issued to
it shall entitle one member thereof to act as a real estate broker, and
for each other member of the firm who desires to act as a real estate
broker an additional license expiring on the same date as the license of
the co-partnership shall be applied for and issued, as hereinbefore
provided, the fee for which shall be the same as the fee required by
this section for the license to the co-partnership. If the licensee be
a limited liability company, the license issued to it shall entitle one
member thereof or one manager thereof to act as a real estate broker,
and for each other member or manager of the firm who desires to act as a
real estate broker an additional license expiring on the same date as
the license of the limited liability company shall be applied for and
issued, as hereinbefore provided, the fee for which shall be the same as
the fee required by this section for the license to the limited
liability company. In case a person licensed individually as a real
estate broker thereafter becomes an officer of a corporation or a member
or manager of a limited liability company or a member of a
co-partnership an application shall be made in behalf of such
corporation, limited liability company or co-partnership for a broker`s
license for him as its representative for the remainder of the then
current license term, provided that the license and pocket card
previously issued to the licensee in his individual capacity shall have
been returned to the department whereupon the department shall cause a
properly signed endorsement to be made without charge on the face of
such license and pocket card as to such change of license status and
return the license and pocket card to the licensee.
3. Disposition of fees. The department of state shall on the first day
of each month make a verified return to the department of taxation and
finance of all fees received by it under this article during the
preceding calendar month, stating from what city or county received and
by whom and when paid.

S 441-c. Revocation and suspension of licenses. 1. Powers of
department. (a) The department of state may revoke the license of a real
estate broker or salesman or suspend the same, for such period as the
department may deem proper, or in lieu thereof may impose a fine not
exceeding one thousand dollars payable to the department of state, or a
reprimand upon conviction of the licensee of a violation of any
provision of this article, or for a material misstatement in the
application for such license, or if such licensee has been guilty of
fraud or fraudulent practices, or for dishonest or misleading
advertising, or has demonstrated untrustworthiness or incompetency to
act as a real estate broker or salesman, as the case may be. In the case
of a real estate broker engaged in the business of a tenant relocator,
untrustworthiness or incompetency shall include engaging in any course
of conduct including, but not limited to, the interruption or
discontinuance of essential building service, that interferes with or
disturbs the peace, comfort, repose and quiet enjoyment of a tenant.
(b)(i) The provisions of this paragraph shall apply in all cases of
licensed broker or licensed salesman who have failed, after receiving
appropriate notice, to comply with a summons, subpoena or warrant
relating to a paternity or child support proceeding or is in arrears in
payment of child support or combined child and spousal support referred
to the department by a court pursuant to the requirements of section two
hundred forty-four-c of the domestic relations law or pursuant to
section four hundred fifty-eight-b or five hundred forty-eight-b of the
family court act.
(ii) Upon receipt of an order from the court pursuant to one of the
foregoing provisions of law based on arrears in payment of child support
or combined child and spousal support, the department, if it finds such
person to be so licensed, shall within thirty days of receipt of such
order from the court, provide notice to the licensee of, and initiate, a
hearing which shall be held by it at least twenty days and no more than
thirty days after the sending of such notice to the licensee. The
hearing shall be held solely for the purpose of determining whether
there exists as of the date of the hearing proof that full payment of
all arrears of support established by the order of the court to be due
from the licensee have been paid. Proof of such payment shall be a
certified check showing full payment of established arrears or a notice
issued by the court, or the support collection unit where the order is
payable to the support collection unit designated by the appropriate
social services district. Such notice shall state that full payment of
all arrears of support established by the order of the court to be due
have been paid. The licensee shall be given full opportunity to present
such proof of payment from the court or support collection unit at the
hearing in person or by counsel. The only issue to be determined by the
department as a result of the hearing is whether the arrears have been
paid. No evidence with respect to the appropriateness of the court
order or ability of the respondent party in arrears to comply with such
order shall be received or considered by the department.
(iii) Upon receipt of an order from the court based on failure to
comply with a summons, subpoena, or warrant relating to a paternity or
child support proceeding, the department, if it finds such person to be
so licensed, shall within thirty days of receipt of such order from the
court, provide notice to the licensee that his or her license shall be
suspended within sixty days unless the conditions in subparagraph (v) of
this section are met.
(iv) Notwithstanding any inconsistent provision of this article or of
any other provision of law to the contrary, the license of a real estate
broker or salesman shall be suspended if at the hearing, provided for by
subparagraph two of this paragraph, the licensee fails to present proof
of payment as required by such subdivision. Such suspension shall not
be lifted unless the court or the support collection unit, where the
court order is payable to the support collection unit designated by the
appropriate social services district, issues notice to the department
that full payment of all arrears of support established by the order of
the court to be due have been paid.
(v) Notwithstanding any inconsistent provision of this article or of
any other provision of law to the contrary, the license of a real estate
broker or a salesperson shall be suspended in accordance with the
provisions of subparagraph (iii) of this paragraph unless the court
terminates its order to commence suspension proceedings. Such
suspension shall not be lifted unless the court issues an order to the
department terminating its order to commence suspension proceedings.
(vi) The department shall inform the court of all actions taken
hereunder as required by law.
(vii) This paragraph applies to paternity and child support
proceedings commenced under, and support obligations paid pursuant to
any order of child support or child and spousal support issued under
provisions of section two hundred thirty-six or two hundred forty of the
domestic relations law, or article four, five, five-A or five-B of the
family court act.
(viii) Notwithstanding any inconsistent provision of this article or
of any other provision of law to the contrary, the provisions of this
paragraph shall apply to the exclusion of any other requirements of this
article and to the exclusion of any other requirement of law to the
contrary.
2. Determination of department. In the event that the department shall
revoke or suspend any such license, or impose any fine or reprimand on
the holder thereof, its determination shall be in writing and officially
signed. The original of such determination, when so signed, shall be
filed in the office of the department and copies thereof shall be served
personally or by registered mail upon the broker or salesman and
addressed to the principal place of business of such broker or salesman,
and to the complainant. All brokers` and salesmen`s licenses and pocket
cards shall be returned to the department of state within five days
after the receipt of notice of a revocation or suspension, or in lieu
thereof, the broker or salesman whose license has been revoked or
suspended shall make and file an affidavit in form prescribed by the
department of state, showing that the failure to return such license and
pocket card is due either to loss or destruction thereof.
3. The display of a real estate broker`s license after the revocation
or suspension thereof is prohibited.
4. Whenever the license of a real estate broker or real estate
salesman is revoked by the department, such real estate broker or real
estate salesman shall be ineligible to be relicensed either as a real
estate broker or real estate salesman until after the expiration of a
period of one year from the date of such revocation.

S 441-d. Salesman`s license suspended by revocation or suspension of
employer`s license. The revocation or suspension of a broker`s license
shall operate to suspend the license of each real estate salesman
associated with such broker, pending a change of association of the
salesman or the expiration of the period of suspension of the broker`s
license. Such suspension of the salesman`s license shall be deemed to be
a discontinuance of association with the broker being suspended.

S 441-e. Denial of license; complaints; notice of hearing. 1. Denial
of license. The department of state shall, before making a final
determination to deny an application for a license, notify the applicant
in writing of the reasons for such proposed denial and shall afford the
applicant an opportunity to be heard in person or by counsel prior to
denial of the application. Such notification shall be served personally
or by certified mail or in any manner authorized by the civil practice
law and rules. If the applicant is a salesman or has applied to become a
salesman, the department shall also notify the broker with whom such
salesman is associated, or with whom such salesman or applicant is about
to become associated, of such proposed denial. If a hearing is
requested, such hearing shall be held at such time and place as the
department shall prescribe. If the applicant fails to make a written
request for a hearing within thirty days after receipt of such
notification, then the notification of denial shall become the final
determination of the department. The department, acting by such officer
or person in the department as the secretary of state may designate,
shall have the power to subpoena and bring before the officer or person
so designated any person in this state, and administer an oath to and
take testimony of any person or cause his deposition to be taken. A
subpoena issued under this section shall be regulated by the civil
practice law and rules. If, after such hearing, the application is
denied, written notice of such denial shall be served upon the applicant
personally or by certified mail or in any manner authorized by the civil
practice law and rules, and if the applicant is a salesman, or has
applied to become a salesman, the department shall notify the broker
with whom such applicant is associated.
2. Revocation, suspension, reprimands, fines. The department of state
shall, before revoking or suspending any license or imposing any fine or
reprimand on the holder thereof or before imposing any fine upon any
person not licensed pursuant to this article who is deemed to be in
violation of section four hundred forty-two-h of this article, and at
least ten days prior to the date set for the hearing, notify in writing
the holder of such license or such unlicensed person of any charges made
and shall afford such licensee or unlicensed person an opportunity to be
heard in person or by counsel in reference thereto. Such written notice
may be served by delivery of same personally to the licensee, or by
mailing same by certified mail to the last known business address of
such licensee or unlicensed person, or by any method authorized by the
civil practice law and rules. If said licensee be a salesman, the
department shall also notify the broker with whom he is associated of
the charges by mailing notice by certified mail to the broker`s last
known business address. The hearing on such charges shall be at such
time and place as the department shall prescribe.
3. Power to suspend a license. The department, acting by such officer
or person in the department as the secretary of state may designate,
shall have the power to suspend a license pending a hearing and to
subpoena and bring before the officer or person so designated any person
in this state, and administer an oath to and take testimony of any
person or cause his deposition to be taken. A subpoena issued under this
section shall be regulated by the civil practice law and rules.

S 441-f. Judicial review. The action of the department of state in
granting or refusing to grant or to renew a license under this article
or in revoking or suspending such a license or imposing any fine or
reprimand on the holder thereof or refusing to revoke or suspend such a
license or impose any fine or reprimand shall be subject to review by a
proceeding brought under and pursuant to article seventy-eight of the
civil practice law and rules at the instance of the applicant for such
license, the holder of a license so revoked, suspended, fined or
reprimanded or the person aggrieved.

S 442. Splitting commissions. No real estate broker shall pay any part
of a fee, commission or other compensation received by the broker to any
person for any service, help or aid rendered in any place in which this
article is applicable, by such person to the broker in buying, selling,
exchanging, leasing, renting or negotiating a loan upon any real estate
including the resale of a condominium unless such a person be a duly
licensed real estate salesman regularly associated with such broker or a
duly licensed real estate broker or a person regularly engaged in the
real estate brokerage business in a state outside of New York.
Furthermore, notwithstanding any other provision of law, it shall be
permissible for a broker properly registered pursuant to the provisions
of article twenty-three-A of the general business law who earns a
commission on the original sale of a cooperative or homeowners
association interest in real estate, including condominium units to pay
any part of a fee, commission or other compensation received for
bringing about such sale to a person whose prinicipal business is not
the sale or offering of cooperatives or homeowners association interests
in real property, including condominium units in this state but who is
either: (i) a real estate salesman duly licensed under this article who
is regularly associated with such broker; (ii) a broker duly licensed
under this article; or a person regularly engaged in the real estate
brokerage business in a state outside of New York.
Except when permitted pursuant to the foregoing provisions of this
section no real estate broker shall pay or agree to pay any part of a
fee, commission, or other compensation received by the broker, or due,
or to become due to the broker to any person, firm or corporation who or
which is or is to be a party to the transaction in which such fee,
commission or other compensation shall be or become due to the broker.

S 442-a. Compensation of salesmen; restrictions. No real estate
salesman in any place in which this article is applicable shall receive
or demand compensation of any kind from any person, other than a duly
licensed real estate broker with whom he associated, for any service
rendered or work done by such salesman in the appraising, buying,
selling, exchanging, leasing, renting or negotiating of a loan upon any
real estate.

S 442-b. Discontinuance or change of salesman`s association; report.
When the association of any real estate salesman shall have been
terminated for any reason whatsoever, his broker shall forthwith notify
the department of state thereof in such manner as the department shall
prescribe. Where change of such salesman`s association is the basis for
such termination, the salesman`s successor broker shall forthwith notify
the department of such change in such manner as the department shall
prescribe, such notice to be accompanied by a fee of one dollar. No real
estate salesman shall perform any act within any of the prohibitions of
this article from and after the termination for any cause of his
association until he thereafter shall have become associated with a
licensed real estate broker.

S 442-c. Violations by salesmen; broker`s responsibility. No violation
of a provision of this article by a real estate salesman or employee of
a real estate broker shall be deemed to be cause for the revocation or
suspension of the license of the broker, unless it shall appear that the
broker had actual knowledge of such violation or retains the benefits,
profits or proceeds of a transaction wrongfully negotiated by his
salesman or employee after notice of the salesman`s or employee`s
misconduct. A broker shall be guilty of a misdemeanor for having any
salesman associated with his firm who has not secured the required
license authorizing such employment.

S 442-d. Actions for commissions; license prerequisite. No person,
copartnership, limited liability company or corporation shall bring or
maintain an action in any court of this state for the recovery of
compensation for services rendered, in any place in which this article
is applicable, in the buying, selling, exchanging, leasing, renting or
negotiating a loan upon any real estate without alleging and proving
that such person was a duly licensed real estate broker or real estate
salesman on the date when the alleged cause of action arose.

S 442-e. Violations. 1. Misdemeanors; triable in court of special
sessions. Any person who violates any provision of this article shall be
guilty of a misdemeanor. The commission of a single act prohibited by
this article shall constitute a violation hereof. All courts of special
sessions, within their respective territorial jurisdictions, are hereby
empowered to hear, try and determine such crimes, without indictment,
and to impose the punishments prescribed by law therefor.
2. Attorney general to prosecute. Criminal actions for violations of
this article shall be prosecuted by the attorney general, or his deputy,
in the name of the people of the state, and in any such prosecution the
attorney general, or his deputy, shall exercise all the powers and
perform all the duties which the district attorney would otherwise be
authorized to exercise or to perform therein. The attorney general
shall, upon a conviction for a violation of any provision of this
article, and within ten days thereafter, make and file with the
department of state a detailed report showing the date of such
conviction, the name of the person convicted and the exact nature of the
charge.
3. Penalty recoverable by person aggrieved. In case the offender shall
have received any sum of money as commission, compensation or profit by
or in consequence of his violation of any provision of this article, he
shall also be liable to a penalty of not less than the amount of the sum
of money received by him as such commission, compensation or profit and
not more than four times the sum so received by him, as may be
determined by the court, which penalty may be sued for and recovered by
any person aggrieved and for his use and benefit, in any court of
competent jurisdiction.
4. In any prosecution under this article, any person, firm or
corporation who, for another, performs or offers to perform or attempts
or offers to attempt, the performance of any one of the acts set forth
in section four hundred forty of this article, shall be presumed to do
so for a fee, commission or other valuable consideration, but such
presumption shall not arise out of a single transaction, except upon
proof of repeated and successive acts, offers or attempts of a like
nature.
5. The secretary of state shall have the power to enforce the
provisions of this article and upon complaint of any person, or on his
own initiative, to investigate any violation thereof or to investigate
the business, business practices and business methods of any person,
firm or corporation applying for or holding a license as a real estate
broker or salesman, if in the opinion of the secretary of state such
investigation is warranted. Each such applicant or licensee shall be
obliged, on request of the secretary of state, to supply such
information as may be required concerning his or its business, business
practices or business methods, or proposed business practices or
methods.
6. For the purpose of enforcing the provisions of this article and in
making investigations relating to any violation thereof, and for the
purpose of investigating the character, competency and integrity of the
applicants or licensees hereunder, and for the purpose of investigating
the business, business practices and business methods of any applicant
or licensee, or of the officers or agents thereof, the department of
state, acting by such officer or person in the department as the
secretary of state may designate, shall have the power to subpoena and
bring before the officer or person so designated any person in this
state and require the production of any books or papers which he deems
relevant to the inquiry and administer an oath to and take testimony of
any person or cause his deposition to be taken with the same fees and
mileage and in the same manner as prescribed by law for civil cases in a
court of record, except that any applicant or licensee or officer or
agent thereof shall not be entitled to such fees and/or mileage. Any
person, duly subpoenaed, who fails to obey such subpoena without
reasonable cause or without such cause refuses to be examined or to
answer any legal or pertinent question as to the character or
qualification of such applicant or licensee or such applicant`s or
licensee`s business, business practices and methods or such violations,
shall be guilty of a misdemeanor.
7. In any criminal proceeding before any court or grand jury, or upon
any investigation before the department of state for a violation of any
of the provisions of this section, the court or grand jury, or the
secretary of state, his deputy or other officer conducting the
investigation, may confer immunity, in accordance with the provisions of
section 50.20 or 190.40 of the criminal procedure law.
8. Notwithstanding any inconsistent provision of law, with respect to
violations of section four hundred forty-two-h of this article, the
secretary of state is authorized, upon the complaint of any person or on
his or her own initiative, to investigate and prosecute violations of
the provisions of such section by persons not licensed pursuant to this
article and may impose a fine not exceeding one hundred fifty dollars
for the first violation, not exceeding five hundred dollars for a second
violation, and not exceeding one thousand dollars for a third and each
subsequent violation. The attorney general, acting on behalf of the
secretary of state, may commence an action or proceeding in a court of
competent jurisdiction to obtain a judgment against such unlicensed
person in an amount equal to that imposed as a fine.

S 442-f. Saving clause. The provisions of this article shall not apply
to receivers, referees, administrators, executors, guardians or other
persons appointed by or acting under the judgment or order of any court;
or public officers while performing their official duties, or attorneys
at law.

S 442-g. Nonresident licensees. 1. A nonresident of this state may
become a real estate broker or a real estate salesman by conforming to
all of the provisions of this article, except that a nonresident broker
regularly engaged in the real estate business as a vocation who is
licensed and maintains a definite place of business in another state,
which offers the same privileges to the licensed brokers of this state,
shall not be required to maintain a place of business within this state.
Anything to the contrary herein notwithstanding, if any state prohibits
or restricts the right of a resident of this state to become a licensed
nonresident real estate broker or salesman, then the issuance of such a
license to an applicant resident in such state shall be similarly
restricted. The department of state shall recognize the license issued
to a real estate broker or salesman by another state as satisfactorily
qualifying him for license as broker or salesman, as the case may be,
under this section; provided that the laws of the state of which he is a
resident require that applicants for licenses as real estate brokers and
salesmen shall establish their competency by written examinations but
permit licenses to be issued to residents of the State of New York duly
licensed under this article, without examination. If the applicant is a
resident of a state which has not such requirement then the applicant
must meet the examination requirement as provided herein and the
department of state shall issue a license to such nonresident broker or
salesman upon payment of the license fee and the filing by the applicant
with the department of a certified copy of the applicant`s license
issued by such other state.
2. Every nonresident applicant shall file with his application or
renewal application an irrevocable consent on a form prescribed by the
department of state submitting himself to the jurisdiction of the courts
of this state and designating the secretary of state of the state of New
York as his agent upon whom may be served any summons, subpoena or other
process against him in any action or special proceeding. Such process
may issue in any court in this state having jurisdiction of the subject
matter, and the process shall set forth that the action or special
proceeding is within the jurisdiction of the court.
3. Service of such process upon the secretary of state shall be made
by personally delivering to and leaving with him or his deputy or with
any person authorized by the secretary of state to receive such service,
at the office of the department of state in the city of Albany,
duplicate copies of such process together with a fee of five dollars if
the action is solely for the recovery of a sum of money not in excess of
two hundred dollars and the process is so endorsed, and a fee of ten
dollars in any other action or proceeding, which fee shall be a taxable
disbursement. If such process is served upon behalf of a county, city,
town or village, or other political subdivision of the state, the fee to
be paid to the secretary of state shall be five dollars, irrespective of
the amount involved or the nature of the action on account of which such
service of process is made. If the cost of registered mail for
transmitting a copy of the process shall exceed two dollars, an
additional fee equal to such excess shall be paid at the time of the
service of such process. Proof of service shall be by affidavit of
compliance with this subdivision filed by or on behalf of the plaintiff
together with the process, within ten days after such service, with the
clerk of the court in which the action or special proceeding is pending.
Service made as provided in this section shall be complete ten days
after such papers are filed with the clerk of the court and shall have
the same force and validity as if served on him personally within the
state and within the territorial jurisdiction of the court from which
the process issues.
4. The secretary of state shall promptly send one of such copies by
registered mail, return receipt requested, to the nonresident broker or
nonresident salesman at the post office address of his main office as
set forth in the last application filed by him.
5. Nothing in this section shall effect the right to serve process in
any other manner permitted by law.

S 442-h. Rules of the secretary of state. 1. The secretary of state,
and not the state real estate board established under section four
hundred forty-two-i of this article, shall adopt such rules and
regulations as the secretary of state may determine are necessary for
the administration and enforcement of this section.
2. (a) If, after a public hearing and a reasonable investigation, the
secretary of state determines that the owners of residential real
property within a defined geographic area are subject to intense and
repeated solicitations by real estate brokers and salespersons or others
to place their property for sale with such real estate brokers or
salespersons, or otherwise to sell their property, and that such
solicitations have caused owners to reasonably believe that property
values may decrease because persons of different race, ethnic, social,
or religious backgrounds are moving or are about to move into the
neighborhood or geographic area, the secretary of state may adopt a
rule, to be known as a nonsolicitation order, directing all real estate
brokers, salespersons and other persons regularly engaged in the trade
or business of buying and selling real estate to refrain from soliciting
residential real estate listings or otherwise soliciting the sale of
residential real estate within the subject area. Each area subject to
such an order shall be bounded or otherwise specifically defined in the
order. The nonsolicitation order shall be subject to such terms and
conditions as the secretary of state may determine are, on balance, in
the best interest of the public, including but not limited to the
affected owners and licensees. A nonsolicitation order may prohibit any
or all types of solicitation directed towards particular home-owners,
including but not limited to letters, postcards, telephone calls,
door-to-door calls, and handbills. Every nonsolicitation order shall
contain a provision setting forth the day, month and year that the order
shall become effective, as well as the day, month and year that the
order shall expire. A nonsolicitation order shall not be effective for
more than five years. However, a nonsolicitation order and the
boundaries of the area where it applies may be re-adopted or amended
from time to time in accordance with the procedures set forth herein.
(b) No real estate broker shall establish a new principal office or
branch office within any geographic area which is the subject of a
nonsolicitation order without prior approval from the secretary of
state. The secretary of state may deny any application for the
establishment or relocation of a principal office or branch office if
approval of the application would cause the total number of principal
and branch offices within the subject area to exceed the total number of
principal and branch offices that were licensed within the area on the
date the nonsolicitation order became effective.
3. (a) If the secretary of state determines that some owners of
residential real property within a defined geographic area are subject
to intense and repeated solicitation by real estate brokers and
salespersons to place their property for sale with such real estate
brokers or salespersons, or are subject to intense and repeated
solicitation by other persons regularly engaged in the trade or business
of buying and selling real estate to sell their real estate, the
secretary of state may adopt a rule establishing a cease and desist
zone, which zone shall be bounded or otherwise specifically defined in
the rule. After the secretary of state has established a cease and
desist zone, the owners of residential real property located within the
zone may file an owner`s statement with the secretary of state
expressing their wish not to be solicited by real estate brokers,
salespersons or other persons regularly engaged in the trade or business
of buying and selling real estate. The form and content of the statement
shall be prescribed by the secretary of state. After a cease and desist
zone has been established by the secretary of state, no real estate
broker, salesperson or other person regularly engaged in the trade or
business of buying and selling real estate shall solicit a listing from
any owner who has filed a statement with the secretary of state if such
owner`s name appears on the current cease and desist list prepared by
the secretary of state. The prohibition on solicitation shall apply to
direct forms of solicitation such as the use of the telephone, the mail,
personal contact and other forms of direct solicitation as may be
specified by the secretary of state.
(b) The secretary of state shall compile a cease and desist list for
each zone established pursuant to paragraph (a) of this subdivision. In
addition to such other information as the secretary of state may deem
appropriate, each cease and desist list shall contain the name of each
owner who has filed an owner`s statement with the secretary, as well as
the address of the property within the zone to which the owner`s
statement applies. The secretary of state shall send to each owner who
has filed an owner`s statement a written acknowledgement of the
secretary of state`s receipt thereof and a pamphlet explaining to the
owner his or her rights in connection therewith and the procedures and
time limits applicable to the filing of complaints for violations. The
secretary of state shall allow an owner who files, or on behalf of whom
is filed, a complaint or other report of a violation of a cease and
desist rule ninety days in which to perfect a complaint by submitting
such other or further information or documents as the secretary of state
may require. The secretary of state shall print a list for each zone.
Each list shall be revised and reprinted at least annually on or before
December thirty-first and shall be made available to the public and to
real estate brokers at a reasonable price to be set by the secretary of
state and approved by the director of the division of the budget.
Additions or deletions shall be made to each list only at the time the
list is reprinted, and the secretary of state shall not issue amendments
or addenda to any printed list.
(c) No rule establishing a cease and desist zone shall be effective
for longer than five years. However, the secretary of state may re-adopt
the rule to continue the cease and desist zone for additional periods
not to exceed five years each. Whenever a rule establishing a cease and
desist zone shall have expired or shall have been repealed, all owner`s
statements filed with the secretary of state pursuant to that rule shall
also expire. However, an owner may file a new statement with the
secretary of state if a new rule is adopted establishing a cease and
desist zone containing the owner`s property. Once the boundaries of a
cease and desist zone have been established by rule of the secretary of
state, the boundaries may not be changed except by repeal of the
existing rule and adoption of a new rule establishing the new
boundaries.

S 442-i. State real estate board. 1. There is hereby established
within the department of state a state real estate board which shall
consist of the secretary of state, the executive director of the
consumer protection board, and thirteen additional members. At least
five of these members shall be "real estate brokers", each of whom, at
the time of appointment, shall be licensed and qualified as a real
estate broker under the laws of New York state and shall have been
engaged in the real estate business in this state for a period of not
less than ten years prior to appointment. The remaining members shall
be "public members" who shall not be real estate licensees.
2. The thirteen members shall be appointed as follows: seven members
shall be appointed by the governor, three of whom shall be real estate
brokers and four of whom shall be public members; two members shall be
appointed by the temporary president of the senate, one of whom shall be
a real estate broker and one of whom shall be a public member; two
members shall be appointed by the speaker of the assembly, one of whom
shall be a real estate broker and one of whom shall be a public member;
one member shall be appointed by the minority leader of the senate, who
shall be either a real estate broker or a public member; and one member
shall be appointed by the minority leader of the assembly, who shall be
either a real estate broker or a public member.
3. Each appointed member shall serve for a term of two years; at any
point during such term the appointed member may be removed by the person
who appointed such member. In the event that any of said members shall
die or resign during the term of office, the successor shall be
appointed in the same way and with the same qualifications as set forth
above. A member may be reappointed for successive terms but no member
shall serve more than ten years in his or her lifetime.
4. A majority of members currently serving on the board shall be
required in order to pass any resolution or to approve any matter before
the board. The secretary of state shall be chairperson of the board.
The vice-chairperson and a secretary shall be elected from among the
members. A board member who fails to attend three consecutive meetings
shall forfeit the seat unless the secretary of state, upon written
request from the member, finds that the member should have been excused
from a meeting because of illness or death of a family member.
5. Each member of the board shall receive no compensation other than
reimbursement for actual and necessary expenses.
6. The board shall meet no fewer than three times per year and at the
call of the secretary of state or a majority of the board. In addition
to regularly scheduled meetings of the board, there shall be at least
one public hearing each year in New York city, one public hearing each
year in Buffalo, and one public hearing each year in Albany. At least
fifteen days prior to the holding of any of these public hearings
pursuant to this subdivision, the board shall give public notice of the
hearing in a newspaper of general circulation in each area where the
public meeting is to be held. The purpose of these hearings shall be to
solicit from members of the public, suggestions, comments, and
observations about real estate practice in New York state.

S 442-j. Effect of invalid provision. Should the courts of this state
declare any provision of this article unconstitutional, or unauthorized,
or in conflict with any other section or provision of this article, then
such decision shall affect only the section or provision so declared to
be unconstitutional or unauthorized and shall not affect any other
section or part of this article.

S 442-k. Powers and duties of the state real estate board. 1. The
state real estate board shall have the power to promulgate rules or
regulations affecting brokers and sales persons in order to administer
and effectuate the purposes of this article, except that matters
pertaining to commingling money of a principal, rendering accounts for a
client, managing property for a client, broker`s purchase of property
listed with him or her, inducing breach of contract of sale or lease,
and records of transactions to be maintained are reserved for the
exclusive regulatory authority of the secretary of state. The secretary
of state, and not the state real estate board, shall promulgate rules
and regulations to administer or implement the provisions of sections
four hundred forty-one and four hundred forty-two-h of this article. In
addition, the secretary of state shall have exclusive regulatory
authority to promulgate rules regarding the duties and responsibilities
of real estate brokers and salespersons with regard to the handling of
clients` funds.
2. Authority to examine applicants. The board is empowered to
prescribe the content for the courses of study for the examination and
education of persons licensed under this article. The board shall advise
the secretary of state on policies governing the administration of the
examinations.
3. Approval of schools. The board shall establish the rules and
regulations governing the approval by the secretary of state of schools
to offer or conduct courses required either for licensure under this
article or for the satisfaction of the continuing education requirements
contained in paragraph (a) of subdivision three of section four hundred
forty-one of this article.
4. Study of laws and regulations. The board shall study the operation
of laws and regulations with respect to the rights, responsibilities and
liabilities of real estate licensees arising out of the transfer of
interests in real property and shall make recommendation on pending or
proposed legislation affecting the same, with the exception of
legislation affecting section four hundred forty-two-h of this article.
5. Enforcement programs and activities. The board shall advise and
assist the secretary of state in carrying out the provisions and
purposes of this article and make recommendations concerning the
programs and activities of the department in connection with the
enforcement of this article.
6. Administration and enforcement. The department of state shall have
the power and its duty shall be to administer and enforce the laws and
regulations of the state relating to those activities involving real
estate for which licensing is required under this article and to
instruct and require its agents to bring prosecutions for unauthorized
and unlawful practice.
7. Reports to legislative committees. The board shall submit annually
a report to the judiciary committee of the state assembly and the
judiciary committee of the state senate, containing a description of the
types of complaints received, status of cases, and the length of time
from the initial complaint to any final disposition.

S 442-l. After-the-fact referral fees. 1. No real estate broker or
salesperson, in any place in which this article is applicable, shall
demand or receive a referral fee or compensation of any kind for (i) a
referral from any person or other entity relative to finding a seller
after a bona fide listing agreement has been signed, (ii) a referral
from any person or other entity relative to finding a buyer after a bona
fide offer to purchase is accepted, or (iii) a referral from any person
or other entity relative to finding a property after a bona fide buyer`s
agency agreement has been signed, unless reasonable cause for payment of
such compensation exists.
2. A violation of this section shall be a violation of this article
and shall constitute a deceptive act or practice within the meaning of
section three hundred forty-nine of the general business law.

S 443. Disclosure regarding real estate agency relationship; form. 1.
Definitions. As used in this section, the following terms shall have the
following meanings:
a. "Agent" means a person who is licensed as a real estate broker or
real estate sales associate under section 440-a of this article and is
acting in a fiduciary capacity.
b. "Buyer" means a transferee or lessee in a residential real property
transaction and includes a person who executes an offer to purchase or
to lease residential real property from a seller through an agent, or
who has engaged the services of an agent with the object of entering
into a residential real property transaction as a transferee or lessee.
c. "Buyer`s agent" means an agent who contracts to locate residential
real property for a buyer or who finds a buyer for a property and
presents an offer to purchase to the seller or seller`s agent and
negotiates on behalf of the buyer.
d. "Listing agent" means a person who has entered into a listing
agreement to act as an agent of the seller for compensation.
e. "Listing agreement" means a contract between an owner or owners of
residential real property and an agent, by which the agent has been
authorized to sell or lease the residential real property or to find or
obtain a buyer or lessee therefor.
f. "Residential real property" means real property improved by a
one-to-four family dwelling used or occupied, or intended to be used or
occupied, wholly or partly, as the home or residence of one or more
persons, but shall not refer to (i) unimproved real property upon which
such dwellings are to be constructed or (ii) condominium or cooperative
apartments in a building containing more than four units.
g. "Seller" means the transferor or lessor in a residential real
property transaction, and includes an owner who lists residential real
property for sale or lease with an agent, whether or not a transfer or
lease results, or who receives an offer to purchase or lease residential
real property.
h. "Seller`s agent" means a listing agent who acts alone, or an agent
who acts in cooperation with a listing agent, acts as a seller`s
subagent or acts as a broker`s agent to find or obtain a buyer for
residential real property.
2. This section shall apply only to transactions involving residential
real property.
3. a. A listing agent shall provide the disclosure form set forth in
subdivision four of this section to a seller prior to entering into a
listing agreement with the seller and shall obtain a signed
acknowledgment from the seller, except as provided in paragraph f of
this subdivision.
b. A seller`s agent shall provide the disclosure form set forth in
subdivision four of this section to a buyer or buyer`s agent at the time
of the first substantive contact with the buyer and shall obtain a
signed acknowledgement from the buyer, except as provided in paragraph f
of this subdivision.
c. A buyer`s agent shall provide the disclosure form to the buyer
prior to entering into an agreement to act as the buyer`s agent and
shall obtain a signed acknowledgment from the buyer, except as provided
in paragraph f of this subdivision. A buyer`s agent shall provide the
form to the seller or seller`s agent at the time of the first
substantive contact with the seller and shall obtain a signed
acknowledgment from the seller or the seller`s listing agent, except as
provided in paragraph f of this subdivision.
d. The parties to a contract of purchase and sale shall sign the
acknowledgment of the parties to the contract. If attorneys for the
buyer and seller arrange for the preparation and execution of a
contract, the real estate licensees are not responsible for obtaining
the acknowledgement of the parties as required by this paragraph.
e. The agent shall provide to the buyer or seller a copy of the signed
acknowledgment and shall maintain a copy of the signed acknowledgment
for not less than three years.
f. If the seller or buyer refuses to sign an acknowledgment of receipt
pursuant to this subdivision, the agent shall set forth under oath or
affirmation a written declaration of the facts of the refusal and shall
maintain a copy of the declaration for not less than three years.
4. The following shall be the disclosure form:
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIPS
Before you enter into a discussion with a real estate agent regarding a
real estate transaction, you should understand what type of agency
relationship you wish to have with that agent.
New York State law requires real estate licensees who are acting as
agents of buyers or sellers of property to advise the potential buyers
or sellers with whom they work of the nature of their agency
relationship and the rights and obligations it creates.
SELLER`S OR LANDLORD`S AGENT
If you are interested in selling or leasing real property, you can
engage a real estate agent as a seller`s agent. A seller`s agent,
including a listing agent under a listing agreement with the seller,
acts solely on behalf of the seller. You can authorize a seller`s or
landlord`s agent to do other things including hire subagents, broker`s
agents or work with other agents such as buyer`s agents on a cooperative
basis. A subagent, is one who has agreed to work with the seller`s
agent, often through a multiple listing service. A subagent may work in
a different real estate office.
A seller`s agent has, without limitation, the following fiduciary
duties to the seller: reasonable care, undivided loyalty,
confidentiality, full disclosure, obedience and a duty to account.
The obligations of a seller`s agent are also subject to any specific
provisions set forth in an agreement between the agent and the seller.
In dealings with the buyer, a seller`s agent should (a) exercise
reasonable skill and care in performance of the agent`s duties; (b) deal
honestly, fairly and in good faith; and (c) disclose all facts known to
the agent materially affecting the value or desirability of property,
except as otherwise provided by law.
BUYER`S OR TENANT`S AGENT
If you are interested in buying or leasing real property, you can
engage a real estate agent as a buyer`s or tenant`s agent. A buyer`s
agent acts solely on behalf of the buyer. You can authorize a buyer`s
agent to do other things including hire subagents, broker`s agents or
work with other agents such as seller`s agents on a cooperative basis.
A buyer`s agent has, without limitation, the following fiduciary
duties to the buyer: reasonable care, undivided loyalty,
confidentiality, full disclosure, obedience and a duty to account.
The obligations of a buyer`s agent are also subject to any specific
provisions set forth in an agreement between the agent and the buyer.
In dealings with the seller, a buyer`s agent should (a) exercise
reasonable skill and care in performance of the agent`s duties; (b) deal
honestly, fairly and in good faith; and (c) disclose all facts known to
the agent materially affecting the buyer`s ability and/or willingness to
perform a contract to acquire seller`s property that are not
inconsistent with the agent`s fiduciary duties to the buyer.
BROKER`S AGENTS
As part of your negotiations with a real estate agent, you may authorize
your agent to engage other agents whether you are a buyer/tenant or
seller/landlord. As a general rule, those agents owe fiduciary duties to
your agent and to you. You are not vicariously liable for their conduct.
AGENT REPRESENTING BOTH SELLER AND BUYER
A real estate agent acting directly or through an associated licensee,
can be the agent of both the seller/landlord and the buyer/tenant in a
transaction, but only with the knowledge and informed consent, in
writing, of both the seller/landlord and the buyer/tenant.
In such a dual agency situation, the agent will not be able to provide
the full range of fiduciary duties to the buyer/tenant and
seller/landlord.
The obligations of an agent are also subject to any specific
provisions set forth in an agreement between the agent and the
buyer/tenant and seller/landlord.
An agent acting as a dual agent must explain carefully to both the
buyer/tenant and seller/landlord that the agent is acting for the other
party as well. The agent should also explain the possible effects of
dual representation, including that by consenting to the dual agency
relationship the buyer/tenant and seller/landlord are giving up their
right to undivided loyalty.
A BUYER/TENANT OR SELLER/LANDLORD SHOULD CAREFULLY CONSIDER THE
POSSIBLE CONSEQUENCES OF A DUAL AGENCY RELATIONSHIP BEFORE AGREEING TO
SUCH REPRESENTATION.
GENERAL CONSIDERATIONS
You should carefully read all agreements to ensure that they adequately
express your understanding of the transaction. A real estate agent is a
person qualified to advise about real estate. If legal, tax or other
advice is desired, consult a competent professional in that field.
Throughout the transaction you may receive more than one disclosure
form. The law requires each agent assisting in the transaction to
present you with this disclosure form. You should read its contents each
time it is presented to you, considering the relationship between you
and the real estate agent in your specific transaction.
ACKNOWLEDGEMENT ACKNOWLEDGEMENT OF PROSPECT
OF PROSPECTIVE BUYER/TENANT SELLER/LANDLORD
(1) I have received and read this (1) I have received and read this
disclosure notice. disclosure notice.
(2) I understand that a seller`s/ (2) I understand that a seller`s/
landlord`s agent, including a listing landlord`s agent, including a
agent, is the agent of the seller/ listing agent, is the agent of
landlord exclusively, unless the the seller/landlord exclusively,
seller/landlord and buyer/tenant unless the seller/landlord and
otherwise agree. buyer/tenant otherwise agree.
(3) I understand that subagents, (3) I understand that subagents,
including subagents participating in including subagents participat-
a multiple listing service, are agents ing in a multiple listing ser-
of the seller/landlord exclusively. vice, are agents of the seller/
landlord exclusively.
(4) I understand that I may engage (4) I understand that a buyer`s/
my own agent to be my buyer`s/ tenant`s agent is the agent of
tenant`s broker. the buyer/tenant exclusively.
(5) I understand that the agent pre- (5) I understand that the agent
senting this form to me, presenting this form to me,
_________________________________ of ____________________________ of
(name of licensee) (name of licensee)
_________________________________ is ___________________________ is
(name of firm) (name of firm)
(check applicable relationship) (check applicable relationship)
____ an agent of the seller/ ____ my agent as a seller`s/
landlord landlord
____ my agent as a buyer`s/ ____ an agent of the buyer/
tenant`s agent tenant
Dated:_______________________________ Dated:__________________________
Buyer/tenant:________________________ Seller/landlord:________________
Dated:_______________________________ Dated:__________________________
Buyer/tenant:________________________ Seller/landlord:________________
ACKNOWLEDGMENT OF PROSPECTIVE BUYER/TENANT
AND SELLER/LANDLORD TO DUAL AGENCY
(1) I have received and read this disclosure notice.
(2) I understand that a dual agent will be working for both the
seller/landlord and buyer/tenant.
(3) I understand that I may engage my own agent as a
seller`s/landlord`s agent or a buyer`s/tenant`s agent.
(4) I understand that I am giving up my right to the agent`s
undivided loyalty.
(5) I have carefully considered the possible consequences of a dual
agency relationship.
(6) I understand that the agent presenting this form to me,
________________________________ of
(name of licensee)
________________________________ is
(name of firm)
_____ a dual agent working for both the buyer/tenant and
seller/landlord, acting as such with the consent of both the
buyer/tenant and seller/landlord and following full disclosure to
the buyer/tenant and seller/landlord.
Dated:_______________________________ Dated:__________________________
Buyer/tenant:________________________ Seller/landlord:________________
Dated:_______________________________ Dated:__________________________
Buyer/tenant:________________________ Seller/landlord:________________
ACKNOWLEDGMENT OF THE PARTIES TO THE CONTRACT
(1) I have received, read and understand this disclosure notice.
(2) I understand that _________________________________ of
(name of real estate licensee)
__________________________________is
(name of firm)
(check applicable relationship) ____ an agent of the seller/landlord
____ an agent of the buyer/tenant
____ a dual agent working for both
the buyer/tenant and seller/
landlord, acting as such with
the consent of both buyer/tenant
and seller/landlord and following
full disclosure to the buyer/
tenant and seller/landlord.
I also understand that _________________________________ of
(name of real estate licensee)
__________________________________is
(name of firm)
(check applicable relationship) ____ an agent of the seller/landlord
____ an agent of the buyer/tenant
____ a dual agent working for both
the buyer/tenant and seller/
landlord, acting as such with
the consent of both buyer/tenant
and seller/landlord and following
full disclosure to the buyer/
tenant and seller/landlord.
Dated:_______________________________ Dated:__________________________
Buyer/tenant:________________________ Seller/landlord:________________
Dated:_______________________________ Dated:__________________________
Buyer/tenant:________________________ Seller/landlord:________________
5. This section shall not apply to a real estate licensee who works
with a buyer or a seller in accordance with terms agreed to by the
licensee and buyer or seller and in a capacity other than as an agent,
as such term is defined in paragraph a of subdivision one of this
section.
6. Nothing in this section shall be construed to limit or alter the
application of the common law of agency with respect to residential real
estate transactions.

S 443-a. Disclosure obligations. 1. Notwithstanding any other
provision of law, it is not a material defect or fact relating to
property offered for sale or lease, including residential property
regardless of the number of units contained therein, that:
(a) an owner or occupant of the property is, or was at any time
suspected to be, infected with human immunodeficiency virus or diagnosed
with acquired immune deficiency syndrome or any other disease which has
been determined by medical evidence to be highly unlikely to be
transmitted through occupancy of a dwelling place; or
(b) the property is, or is suspected to have been, the site of a
homicide, suicide or other death by accidental or natural causes, or any
crime punishable as a felony.
2. (a) No cause of action shall arise against an owner or occupant of
real property, or the agent of such owner or occupant, or the agent of a
seller or buyer of real property, for failure to disclose in any real
estate transaction a fact or suspicion contained in subdivision one of
this section.
(b) Failure to disclose a fact contained in subdivision one of this
section to a transferee shall not be grounds for a disciplinary action
against a real estate agent or broker licensed pursuant to this article.
(c) As used in this section, the terms "agent", "buyer" and "seller"
shall have the same meanings as such terms are defined in section four
hundred forty-three of this article.
3. Notwithstanding the fact that this information is not a material
defect or fact, if such information is important to the decision of the
buyer to purchase or lease the property, the buyer may, when negotiating
or making a bona fide offer, submit a written inquiry for such
information. The buyer or the agent of the buyer shall provide the
written request to the seller`s agent or to the seller if there is no
seller`s agent. The seller may choose whether or not to respond to the
inquiry. The seller`s agent, with the consent of the seller and subject
to applicable laws regarding privacy, shall report any response and
information to the buyer`s agent or to the buyer if there is no buyer`s
agent. If there is no seller`s agent, the seller shall inform the
buyer`s agent, or the buyer if there is no buyer`s agent, whether or not
the seller chooses to provide a response.
4. This section shall preempt any local law inconsistent with the
provisions of this section.