STATE OF NEW YORK - New York Department of State



STATE OF NEW YORK

DEPARTMENT OF STATE

_________________________________________________

In the Matter of the Alleged Violations of Article 12-B

of the Real Property Law and Regulations promulgated CONSENT ORDER

thereunder, File #10-0024

-by-

IVAN KAPLAN, home inspector,

I M KAPCO, INC.

dba HOUSEMASTERS OF LONG ISLAND, home inspection business,

MICHAEL S. LEIBOWITZ, home inspector,

Respondents

_________________________________________________

1. The New York State Department of State, Division of Licensing Services (the (Department() is a department of the State of New York charged with the regulation of home inspectors and with the enforcement of Article 12-B of the Real Property Law ((RPL().

2. At all relevant times herein, Respondent IVAN KAPLAN (“Respondent Kaplan”) has been a licensed home inspector, class code 04, license UID # 16000008286, with most recent licensing period effective through 1/16/12, operating under the corporation known as I M Kapco, Inc., dba HOUSEMASTER OF LONG ISLAND (“Respondent Company”), with registered business address at 357 Veterans Memorial Highway, Commack, NY 11725.

Respondent MICHAEL S. LEIBOWITZ (“Respondent Leibowitz”) is a licensed home inspector, class code 04, license UID # 16000042695, with present licensing period effective through 5/3/11, associated with Respondent Company, and with registered business address at 17 Meryll Place, Plainview, NY 11803. At the relevant times, however, Respondent Leibowitz was licensed solely as a professional engineer, and not as a home inspector; Respondent Leibowitz’s professional engineer license was retired in or about April 2009, just prior to his obtaining his home inspector’s license, which became effective 5/3/09.

3. On or about 1/4/10 the Department of State, Division of Licensing Services received a complaint alleging certain wrongdoings by the Respondents with regard to licensed business and activities, and in specific concerning a home inspection performed by Respondent Leibowitz on or about March 13, 2009, for clients named Goldberg, upon which Respondent Leibowitz designated the name of Respondent Company, and the UID # of Respondent Kaplan.

4. Based upon the allegations raised in the complaint, the Department(s staff conducted an investigation, which investigation resulted in commencement of the above-captioned administrative proceeding.

5. Respondents have been advised of the right to counsel and are represented in these proceedings by Lawrence Van Dyke, Esq., 89 Jefferson Avenue, P.O. Box 1365, Roslyn Heights, NY 11577.

6. By executing this Consent Order, the Respondents affirmatively waive the right to a hearing in the manner provided by law, consent to the issuance and entry of this Order, and agree to be bound by the terms, provisions and conditions contained herein.

7. Respondents admit the allegations and violations set forth herein, and affirm that all said violations have been, or will be rectified, in accordance with the terms set forth herein:

By representing himself to the public to be a qualified home inspector by virtue of his status as a licensed professional engineer, and conducting home inspections on behalf of Respondents, however, without being separately licensed as a home inspector, and inserting the license number of his employer, Respondent Kaplan, on the inspection report prepared for clients, Respondent Leibowitz unintentionally and without malice violated RPL Article12-B, and in particular §§ 444-d, 444-g, 444-h(1)(h) and 444-n, and caused issues to be raised regarding his trustworthiness and/or competency to act as a home inspector;

By acting without specific intent to violate the home inspector licensing law, however also identifying personal confusion concerning the requirements of the home inspection licensing law, and permitting Respondent Leibowitz, a licensed professional engineer, to perform home inspection activities beyond the scope of his professional engineering license, and without a valid home inspector license, while working for the Respondent Business, a corporation conducting home inspection services, and permitting said individual to affix the license number attributable to Respondent Kaplan upon one or more home inspection reports prepared for clients, Respondent Kaplan, individually, and on behalf of Respondent Company, improperly permitted his license to be utilized by an unlicensed individual, and violated RPL Article12-B, and in particular §§ 444-d, 444-g, 444-h(1)(h) and 444-n, and caused issues to be raised regarding Respondents’ trustworthiness and/or competency to be licensed as a home inspector;

By using contracts, inspection reports, receipts and other documents reflecting the name of the Respondents, however failing to properly state the licensure by the NYS Department of State, Respondents Kaplan and Company violated Article 12-B, § 444-g(2) and caused issues to be raised regarding trustworthiness and/or competency.

Respondents Kaplan and Company affirm that action has been taken to ensure that all persons associated with Respondent Company, and who conduct home inspections pursuant to Article 12-B of the RPL, have been, as of the date of this Order, properly registered with the Department of State and obtained licenses as home inspectors in accordance with Article 12-B of the NY Real Property Law.

NOW, in consideration of the above premises, it is ORDERED:

1. That Respondents shall execute and forward the within Consent Order to the NYS Department of State, Division of Licensing Services, Attn: Linda D. Cleary, 80 South Swan St., 10th Floor, Albany, NY 12201, so that the original of same is received on or before March 11, 2011, or this offer is void, however a copy of the within agreement, fully executed and notarized, shall be sent via fax to the attention of Linda D. Cleary, at (518) 473-2728, prior to Noon on Tuesday, March 8, 2011.

2. That Respondents shall pay a collective fine in the amount of One Thousand Five Hundred ($1,500) Dollars, also being due on or before March 11, 2011, in the form of attorney’s check, certified/cashier’s check or money order, made payable to the “New York State Department of State”.

3. Respondent Kaplan, on behalf of Respondent Company, agrees to provide to the Department within thirty (30) days of the date of this Consent Order, documentary evidence satisfactory to the Department that all contracts, agreements, reports, and other promotional materials, issued by the Respondent Company in connection with licensed activity, contain the requisite language mandated under Article 12-B, § 444(g)(2).

4. Failure by the Respondents to timely comply with any of the foregoing conditions, shall render the offer set forth herein null and void and shall result in the immediate revocation of the applicable Respondent(s)’ licenses.

5. That upon execution of this Order by the Secretary of State or her designee, the Complaint in this matter shall be terminated, withdrawn and discontinued with prejudice with respect to Respondents in accordance with the terms hereof.

6. That the Consent Order herein expressly depends upon representations made by the Respondents, both oral or written, formal or informal which relate to the subject matter of the Consent Order and that such representations have fully, accurately and truthfully disclosed all relevant facts to the Department of State. If any such representation is determined to be limited, inaccurate or untruthful, the Department of State shall not be bound by the terms herein and shall initiate any action it deems appropriate in the administrative, civil or criminal prosecution of the Respondents.

7. The provisions of this Order shall be deemed to bind Respondents, Respondents’ agents, employees, successors and assigns and all persons, firms, corporations acting under or for the Respondents.

8. The effective date of this Order shall be the date on which the Secretary of State or her designee signs it and shall expire when Respondents have fully complied with the requirements of this Order. The Department will provide Respondents or Respondents’ counsel with a fully executed copy of this Order as soon as practicable after the Secretary of State signs it.

9. The failure of Respondents to comply fully and in a timely fashion with any provision of this Order shall constitute a default and a failure to perform an obligation under this Order.

10. This Order constitutes the entire agreement of the parties and no provision of the agreement shall be deemed waived or otherwise modified except as is specifically set forth in a writing executed by the Secretary of State or her designee indicating an intent to modify this Order.

11. Nothing contained in this Order shall be construed as barring, diminishing, adjudicating or in any way affecting (1) any legal, administrative or equitable rights or claims, actions, suits, causes of action or demand whatsoever that the Department may have against anyone other than Respondents; (2) any right of the Department to enforce administratively or at law or in equity, the terms, provisions and conditions of this Order; or (3) any right of the Department to bring any future action, either administrative or judicial, for any other violations of the applicable laws, the implementing regulations or conditions contained in orders if any, issued by the Department to Respondents.

Dated: April 12, 2011

________________________

Albany, New York

NEW YORK STATE

DEPARTMENT OF STATE

By: ___________________________

Susan L. Watson

General Counsel

CONSENT OF RESPONDENT IVAN KAPLAN, home inspector, and authorized officer of I M KAPCO, INC., doing business as HOUSEMASTERS OF LONG ISLAND,

home inspection business

Respondent IVAN KAPLAN, home inspector, and principal of I M KAPCO, INC., doing business as HOUSEMASTERS OF LONG ISLAND, hereby consents to the issuing and entering of this Order, waives the right to a hearing and agrees to be bound by the terms and conditions herein.

I M KAPCO, INC.

dba HOUSEMASTERS OF LONG ISLAND

___________________________________________

By: IVAN KAPLAN, home inspector

STATE OF NEW YORK )

) ss.:

COUNTY OF )

On this ____ day of _________ in the year 2011 before me, the undersigned, personally appeared IVAN KAPLAN, personally known to me or proved to me on the basis of satisfactory evidence, to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.

________________________________________

Notary Public

CONSENT OF RESPONDENT MICHAEL S. LEIBOWITZ, home inspector

Respondent MICHAEL S. LEIBOWITZ, home inspector, hereby consents to the issuing and entering of this Order, waives the right to a hearing and agrees to be bound by the terms and conditions herein.

___________________________________________

MICHAEL S. LEIBOWITZ, home inspector

STATE OF NEW YORK )

) ss.:

COUNTY OF )

On this ____ day of _________ in the year 2011 before me, the undersigned, personally appeared MICHAEL S. LEIBOWITZ, personally known to me or proved to me on the basis of satisfactory evidence, to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.

________________________________________

Notary Public

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