MATTER OF GOUIRAN v. DEP'T OF STATE OF THE STATE OF NEW YORK

Petition granted to the extent that the determination dated April 23, 1980 is annulled, on the law, solely insofar as it requires that a pending civil action be discontinued with prejudice as a condition of the issuance of licenses to persons employed by entities controlled by petitioner. In all other respects, determinations confirmed insofar as reviewed and proceedings dismissed on the merits, without costs or disbursements.

The determinations that petitioner had demonstrated untrustworthiness in violation of section 441-c of the Real Property Law were supported by substantial evidence in the record (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176). Moreover, on this record, and bearing in mind that another finding of untrustworthiness had been made against petitioner prior to the time that he engaged in the conduct which gave rise to these proceedings, the penalty imposed is not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Pell v Board of Educ., 34 N.Y.2d 222). However, in general, in such proceedings, it is "improper for the Secretary of State to interfere with pending civil actions relative to brokerage claims and such actions ought to be left to judicial determination" (Partridge v Lomenzo, 37 A.D.2d 180, 183 [Rabin, J., dissenting in part]). Accordingly, we have annulled so much of the second determination as conditioned the issuance of broker's licenses to persons employed by entities controlled by petitioner upon the discontinuance of a pending civil action to recover upon a brokerage claim.