| Talk of the Town Realty v Geneve |
| 2013 NY Slip Op 05997 [109 AD3d 981] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Talk of the Town Realty, Appellant, v MarioGeneve et al., Respondents. |
—[*1] Leo Salzman, Brooklyn, N.Y., for respondents.
In an action to recover a real estate broker's commission, the plaintiff appeals froman order of the Supreme Court, Kings County (Graham, J.), dated November 18, 2011,which granted the defendants' motion for summary judgment dismissing the complaintand denied its cross motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the defendants' motion for summary judgment dismissing the complaint, andsubstituting therefor a provision denying that motion; as so modified, the order isaffirmed, without costs or disbursements.
In this action to recover a real estate broker's commission, the plaintiff, a real estatebrokerage firm, alleged that its broker, Simon Yermash, procured ready, willing, and ablepurchasers, Anna Shchiglik and Mark Kotliar (hereinafter together the purchasers). Thepurchasers ultimately purchased the subject property from the defendants. To prevail onits cause of action to recover a commission, the plaintiff is required to prove, inter alia,that it was "the procuring cause of the sale" (Sutton & Edwards, Inc. v 68-60 Austin St. Realty Corp., 70AD3d 810, 810 [2010] [internal quotation marks omitted]; see Zere Real Estate Servs., Inc. vParr Gen. Contr. Co., Inc., 102 AD3d 770, 773 [2013]; Hentze-Dor Real Estate, Inc. vD'Allessio, 40 AD3d 813, 815 [2007]). "To establish that a broker was theprocuring cause of a transaction, the broker must establish that there was a direct andproximate link, as distinguished from one that is indirect and remote, between the bareintroduction and the consummation" (Zere Real Estate Servs., Inc. v Parr Gen. Contr.Co., Inc., 102 AD3d at 773 [internal quotation marks omitted]; Hentze-Dor RealEstate, Inc. v D'Allessio, 40 AD3d at 816). However, "a broker . . .does not automatically and without more make out a case for commissions simplybecause he [or she] initially called the property to the attention of the ultimate purchaser"(Greene v Hellman, 51 NY2d 197, 205 [1980]). "Where, as here, the broker isnot involved in the negotiations leading up to the completion of the deal, the broker mustestablish that [it] created an amicable atmosphere in which negotiations proceeded or that[it] generated a chain of circumstances that proximately led to the sale" (Hentze-DorReal Estate, Inc. v D'Allessio, 40 AD3d at 816 [internal quotation marks omitted];see Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d at 773;McNeill v Menter, 19AD3d 1161, 1162 [2005]; Buck v Cimino, 243 AD2d 681, 684 [1997]).[*2]
Here, in support of their motion for summaryjudgment dismissing the complaint, the defendants submitted evidence which includedthe deposition testimony of the purchasers that they had a personal and businessrelationship with Yermash, who had shown them various properties in 2000 and 2001. InApril 2001, Mary Nuccio Realty was the listing broker for the subject property and hadplaced the property on a multiple listing service at the asking price of $799,000. Yermashshowed Shchiglik the subject property during a meeting which lasted 30 minutes andincluded a tour of the entire premises. One of the defendant sellers was present andanswered Shchiglik's questions. Yermash was the only broker ever to show the propertyto Shchiglik. Shchiglik later expressed her interest in the property to Kotliar, who calledYermash and asked him to submit an offer of $699,000 to the defendants. According toKotliar's testimony, Yermash said the offer was too low and that he was not going tosubmit it to the sellers. Thereafter, the purchasers cut all ties with Yermash.Approximately one month later, a broker from Fillmore Real Estate, Ltd. (hereinafterFillmore) showed the property to Kotliar. After this showing, in June 2001, Kotliarinformed the Fillmore broker of the previous showing by Yermash. The Fillmore brokertold Kotliar that, because the previous listing had expired, the plaintiff was no longerauthorized to complete the sale. The subsequent broker conveyed an offer of $715,000from the purchasers to the defendants and a counteroffer from the defendants of$730,000; on June 9, 2001, the purchasers and the defendants signed a binder for$730,000, which was the ultimate closing price. One of the defendant sellers testified thatshe received no offers from other potential purchasers during the time the property waslisted.
With this evidence, the defendants established, prima facie, that the plaintiff was notthe procuring cause of the sale. However, in opposition, the plaintiff submitted evidenceraising a triable issue of fact sufficient to defeat the defendants' motion. The plaintiffsubmitted a document signed by Shchiglik establishing that Yermash showed theproperty to her on April 5, 2001. Further, the plaintiff submitted Yermash's affidavit inwhich he averred that the April 2001 showing to Shchiglik lasted 30 to 60 minutes,during which she expressed immediate interest as evidenced by the length of theshowing, Shchiglik taking measurements in different rooms, and the number of questionsShchiglik asked the seller. Yermash further averred that he did submit the offer of$699,000 to the defendants, that offer was rejected, and thereafter, his phone calls to thepurchasers were not returned despite their previous business and personal relationship.Further, the plaintiff raised a triable issue of fact as to whether the defendants improperlydenied the plaintiff a commission by submitting evidence that the defendants were awareof Yermash's involvement yet, over the purchasers' objection, they refused to sign thesale contract unless it contained a clause warranting that Fillmore was the only brokerand that the purchasers agreed to indemnify them in the event of breach of the warranty.
On the record presented, we do not agree with our dissenting colleague that theevidence conclusively establishes that the plaintiff's only involvement was a singleshowing which resulted in obtaining an offer substantially less than the asking price andthe ultimate sale price. It is undisputed that Yermash, the plaintiff's broker, was the firstto show the premises to one of the purchasers on April 5, 2001, and only two monthslater, on June 9, 2001, the purchasers signed a binder for the sale price of $730,000. Thepurchasers conceded that they submitted an offer of $699,000 through Yermash shortlyafter the April 2001 showing. There is a triable issue of fact as to whether this was acredible offer within the negotiable range in light of the ultimate sale price of $730,000.A triable issue also is raised as to whether Yermash not only obtained this offer but alsosubmitted it to the sellers at a time when the property was placed on a multiple listingservice. The record does not clearly reveal the circumstances surrounding the purchasers'refusal to continue dealing with Yermash despite their previous business and personalrelationship when, shortly thereafter, they continued the transaction with the aid ofanother broker. Disputed fact issues exist as to whether the purchasers rebuffedYermash's subsequent attempts to continue the negotiations, and whether the defendantsimproperly warranted that the broker from Fillmore was the only broker involved in thesale.
Thus, the plaintiff raised a triable issue of fact as to whether it generated a chain ofcircumstances that proximately led to the sale (see Hentze-Dor Real Estate, Inc. vD'Allessio, 40 AD3d at 816; McNeill v Menter, 19 AD3d at 1162; Buckv Cimino, 243 AD3d at 684-685; Dagar [*3]Group v Hannaford Bros. Co., 295 AD2d 554, 555[2002]; cf. Mollyann, Inc. v Demetriades, 206 AD2d 415, 416 [1994] [plaintiffbroker was not a direct and proximate link to the sale where the sellers ultimately"negotiated an entirely different deal with the purchasers through a different broker"]). Inlight of this triable issue of fact, the Supreme Court properly denied the plaintiff's crossmotion for summary judgment on the issue of liability, but should have also denied thedefendants' motion for summary judgment dismissing the complaint (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Angiolillo,Chambers, JJ., concur.
Hinds-Radix, J., concurs in part and dissents in part, and votes to affirm the orderappealed from, with the following memorandum: In its complaint, the plaintiff allegedthat the defendant sellers of residential real property entered into an agreement withFillmore Real Estate, Ltd. (hereinafter Fillmore), to act as their agent to sell the property,and to place the property with a multiple listing service. The complaint further allegedthat on February 28, 2001, the property was placed with a multiple listing service at anasking price of $799,000. According to the plaintiff, the multiple listing agreementexpired on May 30, 2001.
The complaint alleges that on April 5, 2001, the plaintiff showed the property to thepurchasers of the property. The plaintiff's bill of particulars noted that the plaintiffs'representative who showed the property to the purchasers was Simon Yermash. Theplaintiffs asserted that Yermash submitted an offer from the purchasers to the defendantsellers. In July 2001, the purchasers, negotiating through Fillmore, agreed with the sellerson a purchase price of $730,000, and the sale closed on October 12, 2001.
The defendant sellers, in their affidavit in support of their motion for summaryjudgment, stated that they never dealt with the plaintiff or Yermash in any capacity. MarkKotliar and Anna Shchiglik (hereinafter together the purchasers) are not parties to thisaction. However, in support of the defendants' motion, the purchasers submittedaffidavits acknowledging that Yermash showed Shchiglik the property, the purchasersmade an offer substantially less than the asking price, and the purchasers then had nofurther contact with Yermash.
Kotliar testified at his deposition that he was a tax accountant, and Yermash was hisclient. Kotliar subsequently became Yermash's client, and Yermash showed Kotliar andShchiglik several houses. According to Kotliar, they offered $699,000 for the property,Yermash refused to relay the offer to the sellers because it was too low, and thepurchasers cut off all further contact with him.
Yermash, in opposition to the defendants' motion for summary judgment, and insupport of the plaintiff's cross motion for summary judgment, submitted a documentsigned by himself and Shchiglik, stating he and the plaintiff were the purchasers' impliedlicensed agents. Yermash claimed that he relayed the purchasers' offer of $699,000 to thedefendants, and they rejected it. Thereafter, the purchasers ceased all communicationwith him and did not return his telephone calls.
"A real estate broker is entitled to recover a commission upon establishing that it '(1)is duly licensed, (2) had a contract, express or implied, with the party to be charged withpaying the commission, and (3) was the procuring cause of the sale' " (Hentze-Dor Real Estate, Inc. vD'Allessio, 40 AD3d 813, 815 [2007], quoting from Stanzoni Realty Corp. v LandmarkProps. of Suffolk, Ltd., 19 AD3d 582, 583 [2005] [emphasis supplied]). In thiscase, it was undisputed that the plaintiff was duly licensed. Although the evidence in therecord indicated that the plaintiff was an agent of the purchasers, that did not precludethe plaintiff from claiming that it was acting as a dual agent of both the purchasers andthe sellers (see generallyDouglas Elliman LLC v Tretter, 20 NY3d 875 [2012]).
The majority agrees that the Supreme Court did not err in denying the plaintiff's crossmotion for summary judgment, as the plaintiff failed to establish that it produced a buyerwho was [*4]ready, willing, and able to purchase at termsset by the defendant sellers (see e.g. Lane—Real Estate Dept. Store v LawletCorp., 28 NY2d 36, 42 [1971]; Sutton & Edwards, Inc. v 68-60 Austin St. Realty Corp., 70AD3d 810, 811 [2010]; New Spectrum Realty Servs. v Weiser, 273 AD2d172 [2000]).
Moreover, as acknowledged by the majority, the defendants established as a matterof law that the plaintiff was not the procuring cause of the sale. The law is that "a broker,save when [it] enjoys the benefit of a special agreement to the contrary, does notautomatically and without more make out a case for commissions simply because [it]initially called the property to the attention of the ultimate purchaser" (Greene vHellman, 51 NY2d 197, 205 [1980]). Where, as here, the broker is not involved inthe negotiations leading up to the completion of the transaction, the broker must establishthat it created an amicable atmosphere in which negotiations proceeded, or that itgenerated a chain of circumstances that proximately led to the sale (see Zere Real Estate Servs., Inc. vParr Gen. Contr. Co., Inc., 102 AD3d 770, 772 [2013]; Hentze-Dor Real Estate, Inc. vD'Allessio, 40 AD3d 813, 816 [2007]).
The defendants established as a matter of law that that test was not met. Although theplaintiff called the purchasers' attention to the property, the evidence established that thatwas all it did. It did not create an amicable atmosphere for negotiations, which wereengaged in by another broker. All the plaintiff did was show the purchasers the property,and obtain an offer substantially less than the asking price and ultimate selling price. Atbest, this indicated that the plaintiff had an indirect and remote link to the sale (seeGreene v Hellman, 51 NY2d at 205-206), the terms of which were negotiated byanother broker (see Mollyann, Inc. v Demetriades, 206 AD2d 415, 416 [1994];see also Sacca v Symbol Tech., 265 AD2d 309 [1999]).
I do not agree with the majority that the plaintiff raised a triable issue of fact on thatissue. On this point, it is undisputed that the purchasers refused to continue to deal withthe plaintiff; the majority cites to the fact that the record does not reveal thecircumstances surrounding that refusal. However, the absence of evidence does not raisea triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]),especially where, as here, the defendant sellers were not in a position to know thecircumstances surrounding the refusal of the purchasers to deal with the plaintiff, whowas their agent.
Nor does the fact that the contract of sale included a provision stating that the broker,seller, and purchasers warranted that they only dealt with Fillmore in connection with thesale and the purchasers agreed to indemnify the seller for any breach of that warranty,raise a triable issue of fact as to whether another broker was involved. That provisionwas part of the form residential contract of sale, and the sellers' attorney was justified inrefusing to delete that provision at the request of the purchasers' attorney. The fact thatthe purchasers may have been concerned that they owed a commission to the plaintiff,who was undisputably their agent, and showed them several pieces of property, wasinsufficient to impose liability upon the defendant sellers. In concluding that thedefendant sellers are not entitled to summary judgment, the majority relies uponspeculation and conclusory assertions which are insufficient to defeat a motion forsummary judgment (seeIndotronix Intl. Corp. v Ayyala, 67 AD3d 643, 644 [2009]).
Moreover, the majority's characterization of the purported offer conveyed by theplaintiff of $699,000 as a "credible offer within the negotiable range" is not supported byany legal authority or testimony in the record, and injects a subjective element into thequestion of whether a broker fulfilled his or her obligation to procure a purchaser ready,willing, and able to buy the subject property on terms set by the seller (see e.g.Lane—Real Estate Dept. Store v Lawlet Corp., 28 NY2d at 42; Sutton &Edwards, Inc. v 68-60 Austin St. Realty Corp., 70 AD3d at 811; New SpectrumRealty Servs. v Weiser, 273 AD2d at 172). The cases cited by the plaintiff on thispoint deal with the question of whether a licensed salesperson in the employ of thebroker is entitled to share in a commission with the broker (see Parisi v Swift,121 Misc 2d 787 [Civ Ct, Kings County 1983], affd 128 Misc 2d 388 [1985];Greendlinger v Marilyn A. Donahue Real Estate, Inc., 4 Misc 3d 1016[A], 2004NY Slip Op 50913[U] [Civ Ct, Kings County 2004]), which has no application to theinstant case. It is clear from the record that that offer was not acceptable to the sellers.[*5]
Accordingly, I vote to affirm the order appealedfrom, which granted the defendants' motion for summary judgment dismissing thecomplaint and denied the plaintiff's cross motion for summary judgment on the issue ofliability.