| Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co.,Inc. |
| 2013 NY Slip Op 00200 [102 AD3d 770] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Zere Real Estate Services, Inc., Formerly Known as ZereAssociates, Inc., Respondent-Appellant, v Parr General Contracting Company,Inc., et al., Appellants-Respondents. |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (E. Christopher Murray ofcounsel), for respondent-appellant.
In an action, inter alia, to recover damages in quantum meruit, the defendants appealfrom a judgment of the Supreme Court, Suffolk County (Pines, J.), entered July 21, 2011,which, upon a decision of the same court dated April 19, 2011, made after a nonjury trial,finding, inter alia, that the plaintiff was entitled to a broker's fee under a theory ofquantum meruit, is in favor of the plaintiff and against them in the principal sum of$307,000, and the plaintiff cross-appeals from so much of the same judgment as limitedits award to 1.5% of the value of the initial construction cost of the subject project.
Ordered that the judgment is affirmed, without costs or disbursements.
This action arose out of a dispute between Marie Zere, a New York licensedcommercial real estate broker and owner of the plaintiff, Zere Real Estate Services, Inc.,formerly known as Zere Associates, Inc., and Ronald Parr, president and sole shareholderof the defendants, Parr General Contracting Company, Inc., Parr Development Corp., andParr Organization, Inc., over what role, if any, Zere played in the retention, in January2005, of Parr Organization, Inc., as the general contractor supervising construction of theTouro Law Center (hereinafter the project) in Central Islip. By order dated January 14,2011, the Supreme Court directed the dismissal of the complaint insofar as assertedagainst Ronald Parr, individually.
There is no merit to the defendants' contention that the action is barred by thesix-year statute of limitations because the action accrued in 1994, and the action wascommenced in December 2007. "As a general principle, the statute of limitations beginsto run when a cause of action accrues (see CPLR 203 [a]), that is, 'when all of thefacts necessary to the cause of action have occurred so that the party would be entitled toobtain relief in court' " (HahnAutomotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770[2011], quoting Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; see Town of Poughkeepsie vEspie, 41 AD3d 701, 704 [2007]). " '[W]hen the right to final [*2]payment is subject to a condition, the obligation to payarises, and the cause of action accrues, only when the condition has been fulfilled' "(Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at770, quoting John J. Kassner & Co. v City of New York, 46 NY2d 544, 550[1979]). In the case of a broker, the broker's right to final payment is subject to acondition, specifically, the completion of the deal brokered, which in this case, was theexecution of the contract procured through the broker's services, since only then does thebroker possess a legal right to demand payment (see e.g. CB Richard Ellis-Buffalo, LLC v Kunvarji Hotels, Inc.,94 AD3d 1458, 1458 [2012]; Gronich & Co. v 649 Broadway Equities Co.,169 AD2d 600, 602 [1991]). Here, the Supreme Court properly determined that the causeof action to recover damages in quantum meruit accrued less than six years beforecommencement of this action, specifically, on January 25, 2005, the date on which one ofParr's organizations entered into a construction contract with Touro, since only then didthe plaintiff possess a legal right to demand payment.
To the extent the defendants challenge the legal sufficiency of the evidence, the issueis unpreserved for appellate review, since they failed to move pursuant to CPLR 4401 forjudgment as a matter of law at the close of the evidence (see Miller v Miller, 68NY2d 871, 873 [1986]; ZereReal Estate Servs., Inc. v Adamag Realty Corp., 60 AD3d 758, 759 [2009]).
The defendants' contention that the Supreme Court's findings were contrary to theweight of the evidence is without merit. "Although an appellate court's authority inreviewing a nonjury determination is as broad as that of the trial court, due deference isgiven to the trial court's determination, taking into account that in a close case the trialjudge has the advantage of seeing and hearing the witnesses" (Marinoff v Natty Realty Corp.,34 AD3d 765, 767 [2006]; see Northern Westchester Professional Park Assoc. vTown of Bedford, 60 NY2d 492, 499 [1983]; Lelekakis v Kamamis, 41 AD3d 662, 664 [2007]; Losner v Cashline, L.P., 41AD3d 789, 790 [2007]; Healy v Williams, 30 AD3d 466, 468 [2006]).
"In order to succeed on a cause of action to recover in quantum meruit, the plaintiffmust prove (1) the performance of services in good faith, (2) the acceptance of theservices by the person to whom they were rendered, (3) an expectation of compensationtherefor, and (4) the reasonable value of the services" (Tesser v Allboro Equip. Co.,73 AD3d 1023, 1026 [2010]; see Evans-Freke v Showcase Contr. Corp., 85 AD3d 961,962 [2011]; Miranco Contr.,Inc. v Perel, 57 AD3d 956, 957 [2008]). Here, contrary to the defendants'contentions, the evidence overwhelmingly established that, starting in December 1992,Zere provided brokerage services to Parr in connection with the project, that Parraccepted those services, that those services ultimately resulted in the award of theconstruction contract to Parr's companies, and that both Zere and Parr expected that, ifthe deal went through, Zere would be compensated for services rendered. Mostsignificant, and properly accorded weight by the Supreme Court, was Parr's admission ina letter to Zere, dated May 29, 1998, that "should Parr General Contracting Company,Inc., or any of its affiliates enter into a formal agreement with Touro Law School, eitheras a General Contractor or Construction Manager, Zere Associates, Inc. will berecognized as the broker who brought about this agreement." In the same letter, Parrstated that the brokerage fee would be "the subject of further discussion and negotiationbetween Marie Zere and [him]." The evidence also included recordings of telephoneconversations between Zere and Parr, recorded without Parr's knowledge, containingadditional admissions by Parr acknowledging Zere's role in bringing about the contract,and explicitly discussing with her how much of Zere's commission he would include as aline item in the budget he submitted to Touro, and how much he would "build into" thetotal cost of construction.
There is no merit to the defendants' contention that Zere failed to establish that shewas the procuring cause of the 2005 construction contract. A broker is entitled to recovera commission upon establishing that it "(1) is duly licensed, (2) had a contract, express orimplied, with the party to be charged with paying the commission, and (3) was theprocuring cause of the [transaction]" (Hentze-Dor Real Estate, Inc. v D'Allessio, 40 AD3d 813,815 [2007]; see Poznanski vWang, 84 AD3d 1048, 1049 [2011]; Stanzoni Realty Corp. v Landmark Props. of Suffolk, Ltd., 19AD3d 582, 583 [2005]; Friedland Realty v Piazza, 273 AD2d 351, 351[2000]). It is undisputed that Zere was a licensed real estate broker, and the SupremeCourt found that Zere had an implied contract with Parr and his companies. To establishthat a broker was the procuring cause of a transaction, the broker must establish thatthere was "a direct and proximate link, as distinguished from one that is indirect andremote, [*3]between the bare introduction and theconsummation" (Hentze-DorReal Estate, Inc. v D'Allessio, 40 AD3d 813, 816 [2007] [internal quotationmarks and citations omitted]; see Greene v Hellman, 51 NY2d 197, 205-206[1980]; Finley v Amyot, 285 AD2d 946, 948 [2001]; Goldstein vBallirano, 262 AD2d 529, 530 [1999]). "Where the broker is not involved in thenegotiations leading up to the completion of the deal, the broker must establish that [it]created an amicable atmosphere in which negotiations proceeded or that [it] generated achain of circumstances that proximately led to the [transaction]" (Dagar Group vHannaford Bros. Co., 295 AD2d 554, 555 [2002]; see Hentze-Dor Real Estate,Inc. v D'Allessio, 40 AD3d at 816; Country Harbor Realty, Inc. v Sullivan, 23 AD3d 606, 606[2005]; Friedland Realty v Piazza, 273 AD2d at 351; Buck v Cimino,243 AD2d 681, 684 [1997]).
Here, the Supreme Court's conclusion that Zere was the procuring cause of the 2005construction contract is supported by Parr's admission, in the May 29, 1998, letter, thatZere would be recognized "as the broker who brought about this agreement"(emphasis added), thereby admitting that Zere had "generated a chain of circumstancesthat proximately led to the [subject transaction]" (Dagar Group v Hannaford Bros.Co., 295 AD2d at 555; see Hentze-Dor Real Estate, Inc. v D'Allessio, 40AD3d at 816; Country Harbor Realty, Inc. v Sullivan, 23 AD3d at 606;Friedland Realty v Piazza, 273 AD2d at 351; Buck v Cimino, 243 AD2dat 684).
As to the Supreme Court's determination that Zere was only entitled to a commissionof 1.5% of the contract amount, "where the trial court is called upon to assess thecredibility and weight to be accorded to divergent expert opinions, its factualdeterminations should not be lightly cast aside" (JP Morgan Chase Bank v Whitmore, 41 AD3d 433, 434[2007]; see Hoffinger Indus.,Inc. v Alabama Ave. Realty, Inc., 68 AD3d 818, 820 [2009]; Matter of Winston, 39 AD3d765, 767 [2007]). Rather, the "Supreme Court's firsthand assessment of the experttestimony . . . is entitled to deference" (Stratton v Keefe, 191 AD2d871, 873 [1993]). Here, the court was faced with divergent expert opinions as to whetherthe commission for brokering a large transaction such as the one here, with aconstruction cost of approximately $20 million, would be the usual 6% of the contractamount, or only 1 to 2%. There is no basis in the record for disturbing the court'sdetermination to credit the defendants' expert over the plaintiff's experts.
The defendants' remaining contentions either are without merit, are improperly raisedfor the first time on appeal, or have been rendered academic in light of our determination.Angiolillo, J.P., Dickerson, Hall and Austin, JJ., concur.