ALBANY, N.Y., April 18 – The determination by the Superintendent of Insurance to revoke an insurance agents license for fraudulent and dishonest practices has been upheld by the Appellate Division Third Department.

When applying to renew his license, Hal S. Berman (In Hal S. Berman v. Gregory V. Serio, Superintendent of Insurance of the State of New York)disclosed that the American Stock Exchange (ASE)had barred him from further employment on its floor in 1999.The disclosure led to an administrative proceeding to revoke Bermans license.The Superintendent accepted a Hearing Officers finding that petitioner engaged in securities violations and used fraudulent and dishonest practiceswithin the meaningof Section 2110 (a) (4) (A) and (C)of the Insurance Law.

Berman contended that evidence of his conduct in the securities industry failed todemonstrate that he was untrustworthyto act as an insurance agent.The Appellate Court, in a unanimous decision by Judge J.P. Mercure,disagreedindicating that the Superintendent has wide discretion, extending to the determination of what constitutes untrustworthy conduct.

The court pointed out that the administrative citation charged that Bermanhad violated ASE rules on several occasions by knowingly inputting false information, making intentional misstatementsand omissions, concealing errors and effectuating securities tradeswithout authorization. As a result of this misconduct, Berman was first sanctioned by a fine and a five-year suspension, and later barred permanentlyfrom the ASE, a determination sustained by the Securities and Exchange Commission in 2001.

Given the evidence concerning this misconduct and the petitioners admissions,the Superintendents conclusion that Berman had breached his fiduciary duties and had been untrustworthy is supportedby substantial evidence in the record, Mercure wrote.

The court also disagreed with Bermans argument that the penalty of license revocation was excessive in light of his own disclosure of the ASE discipline and the lesser punishments imposed on other licensees for worse misconduct. The penalty imposed on petitioner was not so disproportionate to his offenses as to shock our sense offairnessand the allegation that others may have received lesser penalties does not warrant modification,the court said.