| Poznanski v Wang |
| 2011 NY Slip Op 04223 [84 AD3d 1048] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Abraham Poznanski et al., Appellants, v Charles B. Wanget al., Defendants, and Island Properties, LLC, et al., Respondents. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (John P. McEntee and Michael A. H. Schoenberg ofcounsel), for respondents Island Properties, LLC, and South Street Enterprises, LLC. Steven Cohn, P.C., Carle Place, N.Y., for respondent Lighthouse Hotel Development I,LLC.
In an action, inter alia, to recover damages for breach of an oral joint venture agreement, theplaintiffs appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), dated October28, 2008, which denied their motion for summary judgment on the fourth cause of actiondeclaring that the plaintiffs Northern Bay Management Group, LLC, and Affinity RealtyConsultants, LLC, are entitled to certain brokerage commissions from the defendants, andgranted the cross motion of the defendant Lighthouse Hotel Development I, LLC, for summaryjudgment, in effect, declaring that those plaintiffs are not entitled to a brokerage commissionfrom that defendant with respect to that defendant's purchase of the Long Island Marriott Hotel.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the cross motion of the defendant Lighthouse Hotel Development I, LLC, which wasfor summary judgment, in effect, declaring that the plaintiff Affinity Realty Consultants, LLC, isnot entitled to a brokerage commission from that defendant with respect to that defendant'spurchase of the Long Island Marriott Hotel, and substituting therefor a provision denying thatbranch of the cross motion; as so modified, the order is affirmed, without costs or disbursements,and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment,inter alia, declaring that the plaintiff Northern Bay Management Group, LLC, is not entitled to abrokerage commission from the defendant Lighthouse Hotel Development I, LLC, with respectto that defendant's purchase of the Long Island Marriott Hotel.
The plaintiffs moved for summary judgment on their fourth cause of action seeking adeclaration that the plaintiffs Northern Bay Management Group, LLC (hereinafter Northern Bay),and Affinity Realty Consultants, LLC (hereinafter Affinity), are entitled to brokeragecommissions allegedly due to those plaintiffs for their work in connection with three real estatetransactions involving the defendants [*2]Lighthouse HotelDevelopment I, LLC (hereinafter Lighthouse Hotel), South Street Enterprises, LLC, and IslandProperties, LLC. Lighthouse Hotel cross-moved for summary judgment, in effect, declaring thatNorthern Bay and Affinity are not entitled to a brokerage commission from it with respect to itspurchase of the Long Island Marriott Hotel (hereinafter the Marriott), which was one of the threesubject transactions. In an order dated October 28, 2008, the Supreme Court denied the plaintiffs'motion and granted Lighthouse Hotel's cross motion.
In order to recover a real estate brokerage commission, the broker must establish: " '(1) thathe or she is duly licensed, (2) that he or she had a contract, express or implied, with the party tobe charged with paying the commission, and (3) that he or she was the procuring cause of thesale' " (Zere Real Estate Servs., Inc. vAdamag Realty Corp., 60 AD3d 758, 759 [2009], quoting Friedland Realty vPiazza, 273 AD2d 351, 351 [2000]; see Ormond Park Realty v Round Hill Dev.Corp., 266 AD2d 523, 524 [1999]). Consequently, the plaintiffs were first required todemonstrate that Northern Bay and Affinity were properly licensed (see Real PropertyLaw § 442-d; see generally Galbreath-Ruffin Corp. v 40th & 3rd Corp., 19 NY2d354, 362-363 [1967]; Kavian v VernahHomes Co., 19 AD3d 649, 650 [2005]; Kreuter v Tsucalas, 287 AD2d 50, 54-55[2001]). The plaintiffs failed to establish their entitlement to judgment as a matter of law bysubmitting proof in admissible form that Northern Bay or Affinity were duly licensed. Rather,there are triable issues of fact as to whether either entity was licensed during the relevant timethat services were provided for each of the transactions at issue. The plaintiffs' failure to establishthat Northern Bay and Affinity were properly licensed required the denial of their motion forsummary judgment, regardless of the sufficiency of the papers submitted in opposition.
The Supreme Court, however, improperly granted that branch of Lighthouse Hotel's crossmotion which was for summary judgment, in effect, declaring that Affinity was not entitled to abrokerage commission in connection with the purchase of the Marriott. The contract of sale atissue admits, by its very terms, the performance of services by Affinity in consummatingLighthouse Hotel's purchase of the Marriott, and includes an express promise by LighthouseHotel, as purchaser, to pay a commission. Although it is undisputed that there was no separatebrokerage agreement between Lighthouse Hotel and Affinity for the payment of a commissiondespite the suggestion to the contrary contained in the terms of the contract of sale, such acontract may be implied where the principal received a benefit from the broker's services undercircumstances which, in fairness, preclude the denial of an obligation to pay (see CurtisProps. Corp. v Greif Cos., 212 AD2d 259, 266 [1995]; Long Is. Bus. Exchange v DeLuca, 58 AD2d 594, 594 [1977]). The conflicting affidavits submitted by the parties alsoreveal the existence of triable issues of fact as to whether Affinity was the procuring cause of thetransaction (see Hentze-Dor Real Estate,Inc. v D'Allessio, 40 AD3d 813, 816 [2007]; Dagar Group v Hannaford Bros.Co., 295 AD2d 554, 555 [2002]). Therefore, the Supreme Court should have denied thatbranch of Lighthouse Hotel's cross motion which was for summary judgment, in effect, declaringthat Affinity was not entitled to a brokerage commission from it with respect to its purchase ofthe Marriott.
However, in opposition to Lighthouse Hotel's prima facie showing of entitlement tojudgment as a matter of law against Northern Bay in connection with the Marriott transaction,Northern Bay failed to raise a triable issue of fact. Accordingly, the Supreme Court correctlygranted that branch of Lighthouse Hotel's cross motion which was for summary judgment, ineffect, declaring that Northern Bay is not entitled to a brokerage commission from it with respectto its purchase of the Marriott.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that NorthernBay is not entitled to a brokerage commission from Lighthouse Hotel with respect to thatdefendant's purchase of the Marriott. Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.[Prior Case History: 21 Misc 3d 1143(A), 2008 NY Slip Op 52483(U).]