| Futersak v Perl |
| 2011 NY Slip Op 04629 [84 AD3d 1309] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Sam Futersak, Respondent, v Sheldon Perl, Also Known asShloime Perl, et al., Appellants. |
—[*1] Hirschel Law Firm, P.C., Garden City, N.Y. (Daniel Hirschel and Ian Davis Hucul ofcounsel), for respondent. Couch White, LLP, Albany, N.Y. (Michael T. Wallender of counsel), for New York StateAssociation of Realtors, Inc., amicus curiae. Abrams Garfield Margolis Bergson, LLP, New York, N.Y. (Robert J. Bergson, Neil B.Garfinkel, and Annette G. Hasapidis of counsel), for Real Estate Board of New York, Inc.,amicus curiae.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from(1) an order of the Supreme Court, Nassau County (Warshawsky, J.), dated March 25, 2010,which denied their motion for summary judgment dismissing the complaint and granted theplaintiff's cross motion for summary judgment on its cause of action alleging breach of contract,and (2) a judgment of the same court (Schellace, R.), entered July 14, 2010, which, upon theorder, and upon the parties' stipulation on damages, is in favor of the plaintiff and against them inthe principal sum of $109,197.91.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendants' motion for summaryjudgment dismissing the complaint is granted, the plaintiff's cross motion for summary judgmenton its cause of action alleging breach of contract is denied, the order is modified accordingly, andthe complaint is dismissed; and it is further;
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been [*2]considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
On January 6, 2004, the plaintiff, who does not have a real estate broker's license, enteredinto an agreement with the defendant Sheldon Perl, also known as Shloime Perl, pursuant towhich he was entitled to a "finders fee" of 15% of any net profit realized from Perl's purchaseand sale, or "flip," of a certain parcel of real property. Perl then formed a limited liabilitycompany, the defendant 700 Rockaway, LLC, which entered into a contract with the seller of theproperty and ultimately obtained title. Although the property was resold for a profit shortly aftertitle was obtained, payment was withheld from the plaintiff.
The plaintiff commenced this action against Perl and 700 Rockaway, LLC (hereinaftertogether the appellants), inter alia, to recover damages for breach of contract. The appellantsmoved for summary judgment, contending that, pursuant to Real Property Law § 442-d,the plaintiff was not entitled to bring or maintain the action without proving that he was a dulylicensed real estate broker on the date the cause of action allegedly arose. The plaintiffcross-moved for summary judgment, asserting, inter alia, that Real Property Law § 442-dwas not applicable under the circumstances of this case.
The Supreme Court denied the appellants' motion and granted the plaintiff's cross motion.The Supreme Court concluded that Real Property Law § 442-d did not apply to theplaintiff's services with respect to the subject property, that the plaintiff had established a primafacie case for breach of contract, and that the defendants had failed to raise a triable issue of factwith respect to that cause of action. A judgment regarding damages was subsequently entered.We reverse.
It is undisputed that the plaintiff was not a licensed real estate broker or salesperson on thedate the cause of action allegedly arose. In support of their motion for summary judgment uponthe ground that the plaintiff's recovery is barred pursuant to Real Property Law § 442-d,the appellants demonstrated that the subject property was the dominant feature of the transactionat issue and that the plaintiff was attempting to collect a fee for services facilitating the purchaseand sale of that property (see Real Property Law § 440 [1]; § 442-d;Kavian v Vernah Homes Co., 19 AD3d 649, 650 [2005]; Panarello v Segalla, 6AD3d 515, 516 [2004]; Berg v Wilpon, 271 AD2d 629, 629 [2000]).
In opposition, the plaintiff failed to submit evidence sufficient to require a trial of any issueof fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). He did notassert, let alone demonstrate, that the underlying transaction was anything more than the purchaseand sale of real property, or that the services rendered were for any purpose other than facilitatingthat purchase and sale (see Sorice v Du Bois, 25 AD2d 521 [1966]; Levinson vGenesse Assoc., 172 AD2d 400, 400 [1991]; cf. Weingast v Rialto Pastry Shop., 243NY 113, 116 [1926]; Reiter v Greenberg, 21 NY2d 388, 392 [1968]; Eaton Assoc. vHighland Broadcasting Corp., 81 AD2d 603, 604 [1981]). Real Property Law § 442-dprovides that "[n]o person . . . shall bring or maintain an action in any court of thisstate for the recovery of compensation for services rendered . . . in the buying,selling, exchanging, leasing, renting or negotiating a loan upon any real estate without allegingand proving that such person was a duly licensed real estate broker or real estate salesman on thedate when the alleged cause of action arose." Contrary to the Supreme Court's conclusion, thisprohibition applies even if the services rendered are characterized as those of a "finder" (seeDodge v Richmond, 5 AD2d 593, 595-596 [1958]; Sorice v Du Bois, 25 AD2d at521; Real Estate Strategies, Ltd v Arlington Realty Group, LLC, 2010 NY Slip Op32296[U] [2010]; Feldbau v Klarnet, 109 Misc 2d 32, 35-36 [1981]).
As the plaintiff is barred from recovery, the appellants' motion for summary judgmentdismissing the complaint should have been granted and the plaintiff's cross motion for summaryjudgment on its cause of action alleging breach of contract should have been denied. Rivera, J.P.,Balkin, Lott and Austin, JJ., concur. [Prior Case History: 27 Misc 3d 897.]