Realty Execs. N. Shore v Walsh

[*1] Realty Execs. N. Shore v Walsh 2018 NY Slip Op 50472(U) Decided on April 5, 2018 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V. BRANDS, JJ
2016-1191 S C

Realty Executives North Shore, Appellant,

against

Barbara Walsh and Re Max Eastern Properties, Respondents.

The Law Offices of Barbara Lee Ford (Barbara Lee Ford of counsel), for appellant. Campolo, Middleton & McCormick, LLP (Meghan M. Dolan of counsel), for respondent Re Max Eastern Properties. Steven M. Burton, Esq., for respondent Barbara Walsh.

Appeal from an order of the District Court of Suffolk County, Third District (James Matthews, J.), dated April 1, 2016, deemed from a judgment of that court entered May 3, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 1, 2016 order granting a separate motion by each defendant for summary judgment dismissing so much of the complaint as was asserted against that defendant and denying plaintiff's cross motion for summary judgment as against both defendants, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

Defendant Barbara Walsh entered into a real estate brokerage "listing agreement" with defendant Re Max Eastern Properties (Re Max) pursuant to which Walsh agreed, among other things, that she would pay a 2.5% brokerage commission to a cooperating broker if the cooperating broker produced a buyer "ready, willing and able to purchase the property on the terms and conditions" set forth on an annexed multiple listing service residential property data section (PDS), or if, through the efforts of the cooperating broker, Walsh and a buyer reached an [*2]agreement "upon all the essential terms of a transaction." The PDS stated a listing price of $359,999. A description of the property, which plaintiff's owner, Linda Bonarelli Lugo, indicated was a "necessary disclosure document," stated, in the remarks section, "No Commissions Paid Until Closing of Title."

Plaintiff, which acted as a "cooperating broker," introduced prospective purchaser Agnes Lucarelli-Gilson to the premises. Lucarelli-Gilson's attorney and Walsh's attorney engaged in negotiations concerning the purchase of the premises, during the course of which it was disclosed that there was a judgment for child support arrears against Lucarelli-Gilson's husband and that he would be a co-obligor on the mortgage for the premises but would not be named on the deed. Lucarelli-Gilson engaged an engineer to inspect the premises, Walsh had repairs performed on the premises, and a price of $358,999 was agreed upon.[FN1] On March 31, 2015, the office of Walsh's attorney emailed Lucarelli-Gilson's attorney a proposed contract of sale, with a cover letter which stated, in part: "Note, the delivery of this contract shall not be deemed an offer to sell, our client has not reviewed the contract, and it shall not be binding until a fully executed contract has been delivered to your office."

On April 6, 2015, Lucarelli-Gilson's attorney sent Walsh's attorney a number of proposed contract changes, including a provision that, in the event that Lucarelli-Gilson's husband were required to satisfy the judgment against him as a condition of obtaining a mortgage, Lucarelli-Gilson would have the right to terminate the contract and to obtain the return of the down payment. Walsh's attorney indicated that the "protective language" was acceptable and, "in exchange," requested a copy of the property inspection report Lucarelli-Gilson had obtained. On April 10, 2015, Lucarelli-Gilson's attorney sent Walsh's attorney a contract, executed by Lucarelli-Gilson, together with a down payment check of $17,950, payable to Walsh's attorney. A rider to the contract Lucarelli-Gilson signed left blank a representation as to the purchaser's income, and also stated, in part, that Lucarelli-Gilson would be entitled to cancel the contract and receive a full refund of her down payment in the event that her mortgage commitment required her husband "to pay more than $50.00 weekly and/or . . . to satisfy arrears" under the judgment against him for child support. The proposed rider thus broadened the bases for Lucarelli-Gilson to cancel the contract beyond those set forth in the letter of April 6.

On April 14, 2015, plaintiff sent Walsh's attorney a bill for a commission. On April 16, 2015, Walsh's attorney informed Lucarelli-Gilson's attorney that Walsh had decided not to sell the premises to Lucarelli-Gilson because Walsh had been unwilling to accept the contractual contingencies demanded by Lucarelli-Gilson, and requested instructions concerning the return of the down payment check.

Plaintiff brought this action to recover a brokerage commission. Following discovery, Re [*3]Max moved for summary judgment dismissing the complaint, Walsh made a separate motion (which was incorrectly denominated a "cross motion") for summary judgment dismissing the complaint, and plaintiff opposed both motions, sought leave to amend the complaint, and cross-moved for summary judgment against both defendants. The District Court granted defendants' motions and denied plaintiff's cross motion.

Walsh's motion for summary judgment was supported by the affidavit of Blake W. Reed, the attorney who, having represented Walsh in the negotiation of a prospective sale to Lucarelli-Gilson, was a person with knowledge of the facts (see CPLR 3212 [b]), and was also supported by the papers that Re Max had submitted to the District Court. In her moving papers, Walsh demonstrated that she had never signed a contract of sale or otherwise consented to the terms of an agreement with Lucarelli-Gilson, and that, from the time they had sent a proposed contract to Lucarelli-Gilson's attorneys, Walsh's attorneys had specified that the "delivery of this contract shall not be deemed an offer to sell, our client has not reviewed the contract, and it shall not be binding until a fully executed contract has been delivered to your office." She further showed that a rider to the contract demanded by Lucarelli-Gilson's attorneys had materially varied the previously negotiated terms of the contract by affording Lucarelli-Gilson the right to cancel the contract and to obtain the return of her down payment in the event that her lender conditioned her mortgage upon her husband's making of child support payments over $50 per week or satisfying arrears he owed under a child support order. By demonstrating that, even if the price for a sale of the premises had been agreed upon, there had been no meeting of the minds with respect to other essential terms of the transaction, Walsh established, prima facie, her entitlement to summary judgment dismissing so much of the complaint as was against her (see Kaelin v Warner, 27 NY2d 352, 355-356 [1971]; Kaplon-Belo Assoc., Inc. v D'Angelo, 79 AD3d 930 [2010]).

In opposition to Walsh's motion and in support of the branch of its own cross motion seeking summary judgment against Walsh, plaintiff contended, but failed to demonstrate with evidentiary materials, that Walsh had acted in bad faith in refusing to contract to sell the premises to Lucarelli-Gilson (see Kent v Aurora Prods. Corp., 41 NY2d 836 [1977]; Kaelin v Warner, 27 NY2d at 356; Heelan Realty & Dev. Corp. v Skyview Meadows Dev. Corp., 204 AD2d 601, 603 [1994]), and thus failed to raise a triable issue of fact to defeat Walsh's motion, or to establish, prima facie, its own entitlement to summary judgment.

Re Max's motion for summary judgment was supported by an attorney's affidavit, rather than an affidavit by a person with direct knowledge of the facts (see CPLR 3212 [b]). The affidavit was, however, adequate to satisfy the requirements of CPLR 3212 (b), since it was used only as a vehicle for the submission of documentary evidence (see Olan v Farrell Lines, 64 NY2d 1092, 1093 [1985]; Branch Servs., Inc. v Cooper, 102 AD3d 645, 648 [2013]). The papers Re Max submitted demonstrated that, in the complaint, plaintiff had failed to make any allegations against Re Max. Re Max's only connections to the proposed transaction were its listing of the premises on the Multiple Listing Service and communications that had occurred between plaintiff's and Re Max's representatives concerning the progress of the proposed sale to Lucarelli-Gilson. By such showing, Re Max demonstrated, prima facie, that plaintiff's cause of [*4]action against it had no merit as a matter of law and that it was entitled to summary judgment dismissing so much of the complaint as was against it (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, plaintiff failed to produce evidence even suggestive that Re Max, as the listing broker, had any independent obligation to pay a commission to plaintiff; rather, under the listing agreement, to the extent that there was a duty to pay a commission, it was the owner's obligation, not that of the listing broker. Since, in opposition to Re Max's motion, plaintiff failed to demonstrate the existence of a triable issue of fact, or the basis for any cause of action it might have against Re Max, the District Court properly granted Re Max's motion for summary judgment and denied plaintiff's cross motion for summary judgment against Re Max. To the extent that plaintiff sought leave to amend the complaint (see CPLR 3025 [b]), we note that the proposed amendment made a conclusory claim that Re Max had violated the covenant of good faith and fair dealing, but failed to suggest how Re Max had done so or any basis to hold Re Max liable for the payment of a commission to plaintiff. Leave to amend is properly denied "where the proposed amendment is palpably insufficient or patently devoid of merit" (Strunk v Paterson, 145 AD3d 700, 701 [2016]). In this circumstance, we conclude that the District Court did not improvidently exercise its discretion in denying plaintiff's cross motion for leave to amend.

We reach no other issue.

Accordingly, the judgment is affirmed.

MARANO, P.J., and GARGUILO, J., concur.

BRANDS, J., taking no part.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: April 05, 2018

Footnotes

Footnote 1:No issue has been raised as to the discrepancy between the listing price of $359,999 on the PDS and the proposed contract price of $358,999.