Sunset 3 Realty, Inc. v Russo

[*1] Sunset 3 Realty, Inc. v Russo 2005 NY Slip Op 50600(U) Decided on February 14, 2005 Supreme Court, Suffolk County Oliver, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2005
Supreme Court, Suffolk County

Sunset 3 Realty, Inc., Plaintiff,

against

Robert J. Russo, SR., Defendants.



17917-2002



Peter D. Tamsen, P.C.

Attorneys for Plaintiff

260 Montauk Highway, Suite 14

Bay Shore, New York 11706

Robert J. Russo

Pro Se

1673 Elsie Lane

Bay Shore, New York 11706

Robert Webster Oliver, J.

ORDERED that this motion by the Defendant Robert J. Russo, for re-argument and to vacate a judgment is denied.

On May 4, 2004, this Court granted the motion of the Plaintiff for summary judgment. The Court stated the facts as follows: On or about June 23, 1999, an agent employed by the Plaintiff obtained a listing agreement to sell a parcel of property known as 1673 Elsie Lane in Bay Shore for the agreed upon sum of $169,000. The property was owned by the Defendant Robert J. Russo, Sr. and he signed that listing agreement. A copy of the agreement is attached to the motion papers. Two offers were received for the real property. One offer was received from Jessie Josephs and another was received from George and Carmen Noriega. Although the Plaintiff alleges that both offers were full price offers, Russo, who is pro se, disputes this allegation. In any event, Russo elected to accept the offer made by Jessie Josephs and attempted to sell the property to her. Josephs then withdrew her offer to purchase the property. The listing agreement expired on September 23, 1999.The Defendant then chose to sell the property on his own after the listing agreement had expired and placed an advertisement in the Long Island Newsday classified section for Real Estate on October 1, 1999. After the adverisement ran in the newspaper, the Defendant entered into a Contract of Sale for the subject property with George and Carmen Noriega, the same individuals that had previously submitted an offer for the house. There is no allegation that either the Defendant or Josephs acted wrongfully when a contract was not signed selling the house while the property was listed by the Plaintiff real estate broker. There is a clause in the listing agreement stating that Russo is obligated to pay a commission if the listing agreement expires and he sells the property to someone to whom the Broker had shown the house within six months immediately following the expiration of the agreement ( see, Ackerman v. Dobbs, 181 AD2d 704, 580 NYS2d 793).

As noted in the previous decision, generally, a real estate broker is entitled to a commission when he produces a purchaser ready, willing and able to purchase the property on the terms set forth in the Listing Agreement. It is undisputed that the property herein was sold shortly after the listing agreement had expired to people that the Plaintiff broker had produced to view the property while the listing agreement was in full force and effect. The Defendant Russo cannot by placing an advertisement in a newspaper avoid a commission rightfully earned by the Plaintiff (see, Sheppard [*2]Int'l, Ltd. v Vogel 147 AD2d 351, 536 NYS2d 788). While Russo permitted the agreement to expire by its own terms, an owner cannot terminate "activities in bad faith and as a mere device to escape the payment of the commission"(Werner v. Katal Country Club, 234 AD2d 659, 662, 650 NYS2d 866; see, O'Connell v. Rao, 70 AD2d 982, 983, 417 NYS2d 794, lv. denied 48 NY2d 609, 424 NYS2d 1026, 400 NE2d 372).

Paragraph 9 of the brokerage agreement herein states:

The above compensation shall be paid to the broker in the event that the owner enters into a contract of sale to sell the property or actually sells the property within six months immediately following the expiration of this agreement to a purchaser who was shown the property by the broker or any of the broker's agents during the term of this Agreement.

Where, as here, there is a clause in the listing agreement stating that Russo is obligated to pay a commission if the listing agreement expires and the owner thereafter sells the property to someone that the Broker had shown the house to before the agreement expired, the Plaintiff broker is entitled to summary judgment if the clause is enforceable (see, Ackerman v. Dobbs, 181 AD2d 704, 580 NYS2d 793; Blake Realty, Inc. v. Gilligan, 155 AD2d 816, 547 NYS2d 930).

The Defendant alleges that the clause is not enforceable because 19 NYCRR § 175.15 provides: No real estate broker shall be a party to an exclusive listing contract which shall contain an automatic continuation of the period of such listing beyond the fixed termination date set forth therein.

Although the period of time after the agreement terminates that the broker is protected in the situation where the owner sells the property to a person that the broker had produced while the agreement was in effect is preprinted in Paragraph 9 of the agreement, this does not violate 19 NYCRR § 175.15. The agreement is not automatically continued by Paragraph 9 because Paragraph 9 is only a provision that protects the Plaintiff if a sale is made to a person who was shown the property while the listing agreement was in effect. The Court therefore adheres to its prior determination and the Plaintiff is entitled to summary judgment under the facts herein (see, Buck v. Cimino, 243 AD2d 681, 663 NYS2d 635, lv to app'l den'd 91 NY2d 807, 692 NE2d 129, 669 NYS2d 260).

The Court is unaware of any reason that it should recuse itself from consideration of this matter and therefore the request that the matter be assigned to another Judge addressed in the first two pages of the combined motion and affidavit is denied.

Dated:

ROBERT WEBSTER OLIVER, J.S.C.