Rivkin v. Century 21 Teran Realty, LLC, et al., No. 05-6566 (2d Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on July 12, 2007.
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05-6566-cv Rivkin v. Century 21 Teran Realty LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term 2006 Argued: March 27, 2007 Decided: July 23, 2008 (Question certified to New York Court of Appeals: July 12, 2007. Question answered by New York Court of Appeals: April 24, 2008.) Docket No. 05-6566-cv --------------------------------------------------X OLEG RIVKIN, Plaintiff-Appellant, - against CENTURY 21 TERAN REALTY LLC, ANDREW PECK, CHLOE DRESSER and JOSHUA LUBORSKY, Defendants-Appellees, SUSANNE MARTIN and ROBERT MARTIN, Defendants. --------------------------------------------------X Before: FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges. Plaintiff-Appellant Oleg Rivkin appeals from an oral decision and order of the United States District Court for the Northern District of New York (Sharpe, J.) granting Defendants-Appellees motion for summary judgment and dismissing all of Rivkin s claims. This Court certified to the New York Court of Appeals the question whether Defendants-Appellees, acting as buyer s agents, breached a fiduciary duty to Plaintiff-Appellant by failing to -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 disclose the representation of a competing bidder for the property Plaintiff-Appellant sought to purchase. The Court of Appeals having answered that question in the negative, the decision of the district court is now affirmed. ROBERT J. TOLCHIN, New York, NY, for PlaintiffAppellant. STEPHEN H. VOLKHEIMER, Hiscock & Barclay, LLP, Albany, NY, for Defendants-Appellees. FEINBERG, Circuit Judge: Plaintiff-Appellant 15 Oleg Rivkin appeals from an oral 16 decision and order of the United States District Court for the 17 Northern District of New York (Sharpe, J.). The district court 18 (1) granted summary judgment to Defendants-Appellees Century 21 19 Teran Realty LLC (hereafter Teran ), its owners, Andrew Peck and 20 Chloe 21 associated 22 Plaintiff-Appellant argues that we should reverse the district 23 court and remand. We assume the parties familiarity with the 24 underlying facts and procedural history of this case, as set 25 forth in our prior opinion, see Rivkin v. Century 21 Teran Realty 26 LLC, 494 F.3d 99, 100-103 (2d Cir. 2007) ( Rivkin I ). Dresser, with and Joshua Teran, and Luborsky, (2) a dismissed real estate Rivkin s broker complaint. 27 In July 2007, we decided in Rivkin I that this case raised 28 a significant issue of New York law regarding the nature of the 29 fiduciary duty a real estate buyer s agent owes to the buyer. 30 Since the issue had public policy implications for the State of -2- 1 New York and there was no direct state law precedent on that 2 question, we certified to the New York Court of Appeals the 3 following 4 breach a fiduciary duty to Plaintiff-Appellant Rivkin by failing 5 to disclose, in any form, Defendants-Appellees representation of 6 a competing buyer for the property Rivkin sought to buy? Id. at 7 108. question: Did any or all of Defendants-Appellees 8 The New York Court of Appeals accepted certification and in 9 a unanimous opinion, filed in April 2008, answered the certified 10 question in the negative. See Rivkin v. Century 21 Teran Realty 11 LLC, 12 Appeals upheld a buyer s agent s duties of undivided loyalty . . 13 . [and] full disclosure owed to the buyer under the common law 14 of agency, id. at 355 (quoting Real Property Law § 443(3)(c) & 15 (4)(a)), but the court ruled that only the buyer s individual 16 agent is subject to these fiduciary duties -- not the agent s 17 firm, id. at 356 (emphasis in the original). The court reasoned 18 that, when two or more real estate brokers, affiliated with the 19 same firm, represent different bidders on the same property, they 20 have every reason to negotiate in their clients best interest, 21 consistent with their fiduciary duties, because they only earn 22 commissions 23 although the court acknowledged that [a]n individual agent . . . 24 may not represent multiple buyers bidding on the same property 10 N.Y.3d for 344, sales 357 to (2008) their -3- ( Rivkin own II ). clients. The Id. Court of Therefore, 1 without 2 multiple prospective buyers involved, id. at 357, it concluded 3 that 4 specifically agree otherwise, the firm is not obligated to insure 5 that its affiliated licensees forgo making offers on behalf of 6 other buyers for property on which the principal has already 7 bid. Id. at 356. It was clear from the record that Rivkin s 8 individual agent (Luborsky) did not represent multiple buyers in 9 the 10 making unless disclosure a real transaction, and obtaining estate thus fully consent brokerage firm complying with from and his the principal duties to Plaintiff-Appellant. Id. at 350-51. Thereafter, we gave the parties an opportunity to comment 11 letter briefs on in 13 Appellant, in letter-brief, 14 reverse the district court s ruling and remand. He claimed that, 15 even though Teran owed him no fiduciary duty of loyalty and full 16 disclosure under New York law, as defined by the New York Court 17 of 18 contract. 19 address his theory of a contract-based fiduciary relationship 20 between 21 argues, the New York Court of Appeals opinion is not dispositive 22 of all the issues on appeal. Plaintiff-Appellant reiterates his 23 claim, originally made to us in his appeal from the district 24 court, Appeals his in In Teran that Rivkin the opinion II, Teran apart himself. from the Rivkin argued had Plaintiff-Appellant s and in that -4- we assumed view, duties should such Rivkin Consequently, legal II. Plaintiff- 12 still duties by did not II Plaintiff-Appellant to which Teran s 1 employees 2 circumstances 3 contractually-created fiduciary duty of loyalty and disclosure 4 owed by Teran itself. 1 At the very least, Plaintiff-Appellant 5 urges us to find that triable issues of fact remained as to the 6 existence 7 warranting reversal of the district judge s grant of summary 8 judgment for Defendant-Appellees. We 9 are and are subject in on this scope of unpersuaded an case individual indicate such by a basis the a number existence of contractually-created Plaintiff-Appellant s of a duty, arguments 10 before us now and decline his invitation to remand the case to 11 the 12 certified question specifically asked whether any or all of 13 Defendants-Appellees 14 Rivkin I, 494 F.3d at 108 (emphasis added). Our framing the 15 question in this broad manner allowed the Court of Appeals to 16 explore 17 relationship might have existed under the facts of the case. When 18 certifying, we explicitly stated that the certified question may 19 be deemed expanded to cover any further pertinent question of New district court. different We remind breach[ed] theories Plaintiff-Appellant a fiduciary pursuant 1 to duty which to a that the Rivkin. fiduciary In his original brief to us, Plaintiff-Appellant raised the issue of the voluntary assumption by Teran of fiduciary duties by agreement. We note that his brief, as well as the entire record of the case filed with this Court, was transmitted to the New York Court of Appeals, along with our certification opinion. See Rivkin I, 494 F.3d at 108. The New York Court of Appeals was therefore aware of the parties arguments to this Court leading to our decision in Rivkin I. If Plaintiff-Appellant had any doubts about the completeness of the New York Court of Appeals review of his arguments, he could certainly have petitioned that court for a rehearing of the case, but apparently did not do so. -5- 1 York law involved in this appeal that the Court of Appeals 2 chooses to answer. Id. In the end, that court clearly answered 3 the certified question in the negative, thus finding that Teran 4 (1) had no fiduciary duty to Rivkin; and (2) did not commit any 5 fiduciary breach by failing to disclose the representation by a 6 different agent of the firm of a competing buyer for the property 7 Rivkin sought to buy. Rivkin II, 10 N.Y.3d at 357. 8 The New York Court of Appeals expressly recognized that 9 there could be an agreement between a real estate brokerage firm 10 and a prospective buyer, through which the firm could undertake 11 fiduciary 12 ( unless a real estate brokerage firm and principal specifically 13 agree otherwise, the firm is not obligated to insure that its 14 affiliated 15 buyers )(emphasis added). The New York Court of Appeals also took 16 into account and quoted the statutorily-mandated terms of the 17 disclosure form entitled Disclosure Regarding Real Estate Agency 18 Relationship 19 broker, presented to his client and which Rivkin himself signed. 20 Rivkin II, 10 N.Y.3d at 353 (quoting former N.Y. Real Property 21 Law 22 form). 23 breach by Teran, the court was obviously not satisfied that this 24 form was tantamount to an agreement giving rise to contractual § duties otherwise licensees 443(4) which which Accordingly, forgo not imposed making Defendant Luborsky, prescribed in offers the deciding -6- by on as content that law. there Id. behalf of Rivkin s of the was no at 356 other buyer s disclosure fiduciary 1 duties 2 additionally relies on the language in the Buyer Agency Agreement 3 form published on Teran s website. But that model agreement, as 4 Rivkin himself concedes, was never signed by either Luborsky or 5 Rivkin; his reliance is, therefore, misplaced. Before responding 6 to the certified question in the negative, the New York Court of 7 Appeals assessed the parties allegations against the factual 8 record and in the most categorical terms concluded that Teran s 9 conduct 10 11 not did prescribed not by amount to the common violation law of of any agency. duty, Rivkin legal or contractual, owed to Rivkin. We cannot revisit the conclusions of the New York Court of 12 Appeals. 13 York s highest court on a determinative substantive issue that 14 requires us to interpret and apply New York law. This we cannot 15 do. [T]he interpretation placed by the highest court of the 16 state upon its statutes is conclusive here. Smiley v. Kansas, 17 196 U.S. 447, 455 (1905). 18 19 Plaintiff asks us to disregard the decision of New For the foregoing reasons, we AFFIRM the ruling of the district court. -7-
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