DeLibero v DeRose

[*1] DeLibero v DeRose 2009 NY Slip Op 51485(U) [24 Misc 3d 135(A)] Decided on July 14, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570373/08.

Grace DeLibero, Plaintiff-Respondent,

against

Dominick DeRose, Defendant-Appellant, Joseph DeRose, Defendant.

Defendant Dominick DeRose appeals from that portion of a judgment of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered March 8, 2001, after a nonjury trial, which awarded plaintiff damages in the principal sum of $12,600 as against him.

Per Curiam.

Judgment (Debra Rose Samuels, J.), entered March 8, 2001, insofar as appealed from, reversed, with $25 costs, and the complaint dismissed as against defendant Dominick DeRose. The Clerk is directed to enter judgment accordingly.

In this action to recover a real estate brokerage commission, the trial evidence failed to establish any contractual privity, express or implied, between plaintiff and defendant Dominick DeRose, the seller of a condominium unit (see Valdina v Martin, 47 AD3d 1159 [2008]; RWSP Realty, LLC v Agusta, 42 AD3d 490 [2007]). Rather, defendant's brokerage agreement was solely with the listing broker (a nonparty). Plaintiff's claim for compensation for her efforts, therefore, does not lie against defendant (see Re/Max Homes & Estates v Leist, 308 AD2d 439, 440 [2003]).Moreover, plaintiff failed to demonstrate that she was a third-party beneficiary of the brokerage agreement between defendant and the listing broker (see Fischer v RWSP Realty, LLC, 19 AD3d 540, 541 [2005]).

Nor is this a case where defendant and the listing broker acted in concert to avoid payment of plaintiff's brokerage commission or where the seller and other interested parties to the sale conspired to escape payment of the commission (see Werner v Katal Country Club, 234 [*2]AD2d 659, 662 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 14, 2009