Moore v Parks

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Moore v Parks 2012 NY Slip Op 32816(U) November 14, 2012 Supreme Court, New York County Docket Number: 101256/11 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] [* 2] SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: PART 58 - - - - - - - _ - _ _ _ _ _ _ _ _ _ _ _ _ _ I I _ _ _ _ _ _ _ X _ _ _ RENEE MICHELLE MOORE arid MOORE TRUST REAL ESTATE GROUP LLC, Plaintiffs, Index No.: 101256/11 -againstDECI~ION__AND ORDER JUSTIN S. PARKS, THE SCOTT PARKS ORGRNTZATION, et al., Uefendants.. FACTUAL BACKGROUND This is an action brought by Renee Michelle Moore ( Plaintiff ) and Moore Trust Real Estate Group LLC ( Moore I Trust ), to recover r e a l estate brokerage commissions from Justin S. Parks ( Defendant ) and The Scott Pa.rlcs Organization ( Scott Parks ) The following facts are not in dispute. Plaintiff is an attorney with a real estate broker s license while DeEendant is a 1.i.censcd real estate salesperson. Tn or about April 2008, Plaintiff offered Defendant the opportunity to serve as a cobroker on real estate transactions. Defendant accepted Plaintiff s offer to serve as a c o - b r o k e r and, in exchange, Plaintiff agreed to share with defendant fifty percent of any r e a l estate brokerage commissions received on t h e deals that they co-brokered, regardless of who was responsible for more of the day-to-day-workon any particular real estate transaction. [* 3] In 2008, the parties did split one transaction where they worked together to consummate a real. estate purchase. IIowever, the agreement at issue centered around the parties working with a prospective purchaser, Pat Langer in April 2008. Ms. Eariyer engaged Plaintiff to represent h e r in the purchase of an apartment in Manhattan. Plaintiff offered clefendaiit fifty percent of the real estate brokerage commission which was accepted. The Langer Transaction d i d riot close until December 9, 2010. However, before the Langer Transaction closed, Defendant became affiliated with a brokerage f i-rm,Charl-es Rutenberg LLC ( Rutenberg ) . l he parties agreed that Rutenberg would be listed as the broker on the Langer Transaction. They a l s o agreed that the brokerage commission would be paid to Rutenberg who would then pay 100% of the commission to defendant less a two thousand dollar transaction fee. On or about December 10, 2010, Defendant received a check . made payable to Rutenberg in the amount of sixty-three thousand dollars, representing the real estate brokerage -commis:;ion for the Langer Transaction. Defendant does not deny that he received a check f r o i n Rutenberg in the amount of fifty thousand dollars on December. 13, 201.0 as his commission f o r the Langer Transaction. To date, defendant has failed to pay pI..aiiitiffwhat she considers to be, her fifty percent share of the real estate brokerage commission for the Langer Transaction. [* 4] DISCUSSION "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marlrs and citation omitted]." Santiago v F i l s t e i n , 35 AU3d 184, 185-186 (1" Dept 2006). The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact.I' of Art, Mazurek v Metropolitan Museuni 27 AD3d 227, 228 ( l s t Dept 2006); see Zucker-man v C i t s y of N e w Y o r k , 49 NY2d 557, 562 (1980). If there lis any doubt as to the existence of a triable fact, the motion for summary judgment must' be denied. See Rotuba R x t r u d e r s v Ceppos,46 NY2d 223,231 (1978). The essence of the parties' agreement was to co-broke the l e a s e commission. From the affidavits and exhibits submitted upon consideration of Plaintiff I s motion f o r summary judgment, it is apparent that there was agreement between the parties to split the commissions earned from t h e Langer Transaction equally. Here, t h e evidence demonstrates, as a matter of law, that the Plaintiff did have an express contract with the Defendant. In light of the express agreement governing commissions, Plaintiff's claim of breach of contract is viable. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or [* 5] her claim that material triable issues of fact exist, requiring a trial of the action (Zuckerman at 562) Defendant's contentions , i n opposition are n o t valid. Defendant's contention that the Plaintiff sued t h e wrong party is without merit, and the P l a i n t i f f has demonstrated an entitlement to a commission of fifty percent as in accordance with their prior real estate transactions , and in accordance with their agreement f o r the Langer Transaction. Defendant acknowledged this fact in correspondence with plaintiff in an effort to renegotiate the percentage of t h e f e e splitting agreement on the Langer Transaction, well after the transaction closed. CONCLUSION Based on t h e foregoing, it is hereby ORDERED that the plaintiffs' motion for summary judgment is grantGd and the Clerk is directed to enter judgment in favor of plaintiffs and against defendants in the amount of $ 3 0 , 5 0 0 . 0 0 , together with interest at the rate of 9% per annum from the date of December 10, 2010, together with costs and di,sbursements to be taxed by the C l e r k upon submission of- an appropriate bill of FI costs. Dated: ~ - _ . COUNTY CLERKS am --

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