| Ling's Props., LLC v Bode |
| 2012 NY Slip Op 02843 [94 AD3d 951] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Ling's Properties, LLC, Appellant, v Michael J. Bode et al.,Respondents. |
—[*1] Michael J. Bode, Hicksville, N.Y., respondent pro se and for respondent Gnosis VII,LLC.
In an action, inter alia, for a judgment declaring that the defendants are not entitled tocompensation arising from a contract between the defendant Gnosis VII, LLC, and the plaintiff,and to recover damages pursuant to Real Property Law § 442-e, the plaintiff appeals froman order of the Supreme Court, Nassau County (Woodard, J.), dated April 7, 2011, which deniedits motion for summary judgment.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the plaintiff's motion which was for summary judgment declaring that thedefendant Gnosis VII, LLC, is not entitled to compensation arising from its contract with theplaintiff and substituting therefor a provision granting that branch of the plaintiff's motion, and(2) by deleting the provision thereof denying that branch of the plaintiff's motion which was forsummary judgment on the issue of liability on so much of the complaint as alleged a violation ofReal Property Law § 442-e insofar as asserted against the defendant Gnosis VII, LLC, andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, NassauCounty, for a determination of the damages to which the plaintiff is entitled under Real PropertyLaw § 442-e and, thereafter, for the entry of a judgment, inter alia, declaring that thedefendant Gnosis VII, LLC, is not entitled to compensation arising from its contract with theplaintiff.
The plaintiff entered into a contract with the defendant Gnosis VII, LLC (hereinafter Gnosis),for certain services designed to enable the plaintiff to acquire certain real property. Thereafter,the plaintiff commenced this action, inter alia, for a judgment declaring that Gnosis and its solemanaging member, the defendant Michael J. Bode, are not entitled to compensation arising fromthe contract and to recover damages pursuant to Real Property Law § 442-e based upon thealleged receipt of a commission or fee for brokerage services without a license. The plaintiffmoved for summary judgment and the Supreme Court denied the motion.
Real Property Law § 442-d bars unlicensed persons and corporate entities fromrecovering fees or commissions for the performance of services facilitating, inter alia, the sale ofreal property (see Real Property Law §§ 442-d, 442-e; Mavco Realty Corp. v M. Slayton RealEstate, Inc., 38 AD3d 726, 727 [2007]). Here, it is undisputed that Gnosis was not alicensed real estate broker, and the plaintiff demonstrated, prima facie, that the acquisition of realproperty was the dominant feature of the contract at issue and that Gnosis charged a fee forservices facilitating the purchase and sale of [*2]the property(see Real Property Law § 440 [1]; § 442-d; Kavian v Vernah Homes Co., 19 AD3d649, 650 [2005]; Panarello vSegalla, 6 AD3d 515, 515-516 [2004]; Berg v Wilpon, 271 AD2d 629 [2000]).Although Bode was a licensed real estate broker, Gnosis, an unlicensed LLC, was nonethelessbarred from receiving a commission or fee for services in the nature of brokerage services(see Real Property Law § 442-d; Sharon Ava & Co. v Olympic TowerAssoc., 259 AD2d 315, 316 [1999]; Philip Mehler Realty v Kayser, 176 AD2d 104[1991]).
In opposition to the plaintiff's motion, the defendants failed to submit evidence sufficient toraise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557[1980]). The defendants did not demonstrate that the acquisition of real property was merelyincidental to the underlying transaction or that the services rendered were for any purpose otherthan facilitating the acquisition of real property (see Real Property Law § 440; Futersak v Perl, 84 AD3d 1309,1310-1311 [2011]; Salzano v Pellillo, 4 AD2d 789, 790 [1957]; cf. Weingast v RialtoPastry Shop., 243 NY 113, 117 [1926]; Eaton Assoc. v Highland BroadcastingCorp., 81 AD2d 603, 604 [1981]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court should have granted those branches of the plaintiff's motionwhich were for summary judgment declaring that Gnosis is not entitled to compensation arisingfrom the contract and on the issue of liability on so much of the complaint as alleged a violationof Real Property Law § 442-e insofar as asserted against Gnosis.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Nassau County, for a determination of the damages to which the plaintiff isentitled under Real Property Law § 442-e and, thereafter, for the entry of a judgment, interalia, declaring that Gnosis is not entitled to compensation arising from its contract with theplaintiff (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371US 74 [1962], cert denied 371 US 901 [1962]). Skelos, J.P., Eng, Belen and Cohen, JJ.,concur.