Tri-R-Realty & Dev. Co., Inc. v Dispenza

[*1] Tri-R-Realty & Dev. Co., Inc. v Dispenza 2007 NY Slip Op 51943(U) [17 Misc 3d 1112(A)] Decided on October 12, 2007 Supreme Court, Onondaga County Greenwood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2007
Supreme Court, Onondaga County

Tri-R-Realty and Development Co., Inc., Plaintiff,

against

James A. Dispenza and Donna Dispenza, Defendants,



2007-1414



APPEARANCES:

STANLEY R. GERMAIN, ESQ., OF GERMAIN & GERMAIN, LLP

For Plaintiff

DAVID B. SNYDER, ESQ., OF GALE & DANCKS, LLC

For Defendants

Donald A. Greenwood, J.

The defendants move pursuant to CPLR §3211(a)(7) to dismiss the plaintiff's complaint for breach of an exclusive listing and commission agreement entered into by the parties on November 5, 2002. The complaint alleges that a purchaser for the subject property was obtained solely through the plaintiff's efforts and that the defendants breached the contract by ultimately selling the property to that buyer and refusing to pay the plaintiff its 7% commission, as required by the agreement. In moving to dismiss, the defendants contend that the agreement was terminated in writing, as required by its terms, but offered no documentary evidence to support that position. They further argue that subsequent to the termination of the agreement with the plaintiff the defendants entered into a commission agreement with another broker, who ultimately negotiated the sale of the property and received a commission.

In deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must determine whether the pleader has a cognizable cause of action; not whether it has been properly pled. See, Guggenheimer v. Ginzburg, 43 NY2d 268 (1997). In making such a determination, the court must accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion to dismiss. See, 511 W. 232nd Street Owner's Corp. v. Jennifer Realty Co., 98 NY2d 144 (2002). The complaint must be liberally construed and the pleader must be [*2]given every favorable inference that can be drawn from the complaint. See, Leon v. Martinez, 84 NY22d 83 (1994). If the court determines that the plaintiff is entitled to relief on any reasonable view of the facts stated, the inquiry is complete and the complaint must be declared legally sufficient.

In opposing the motion to dismiss, the plaintiff has offered documentary evidence disputing the defendants' position. In addition, although the defendants' argument that the automatic continuation of the period of an exclusive listing agreement cannot be continued beyond the fixed termination date contained in the agreement [FN1], the law is well settled that in order to state a claim for a commission, a broker must prove that he or she is duly licensed, that he or she had a contract, express or implied with the party to be charged with paying the commission and that he or she was the procuring cause of the sale. See, Greene v. Hellman, 51 NY2d 197 (1980). A real estate broker is entitled to a commission on the sale of property when the broker brings the minds of the buyer and seller to an agreement for a sale; the broker must be the procuring cause of the sale, that is "there must be a direct and proximate link as distinguished from one that is indirect and remote between the bare introduction and the confirmation". Cappuccilli v. Krupp Equity Limited Partnership, 269 AD2d 822 (4th Dept. 2000) quoting Greene, supra. In addition, a claim for a real estate commission by a broker can be based upon an oral agreement alone. See, Stanzoni Realty v. Landmark Properties, 19 AD3d 582 (2d Dept. 2005).

The plaintiff has sufficiently met its burden in establishing a cognizable cause of action with respect to a breach of the commission agreement. Although the plaintiff was not involved in the final negotiations which led to the sale, a broker, in order to qualify for a commission, may not necessarily have been involved in the ensuing negotiations or in the completion of the sale where the broker creates an amicable atmosphere in which the negotiations proceeded and generated a chain of circumstances. See, Country Harbor Realty Inc. v. Sullivan, 23 AD3d 606 (2d Dept. 2005); see also, Buck v. Cimino, 243 AD2d 681 (2d Dept. 1997). It is undisputed here that the plaintiff introduced Dr. Salil Grupta, the ultimate purchaser of the property, to the defendants and that although the defendants claim there were no meaningful negotiations with Dr. Grupta during the pendency of the agreement with the plaintiff, these assertions are belied by the documentary evidence which shows that a purchase offer was in fact made by Dr. Gupta in March of 2004 and that on April 1, 2004 defendant James Dispenza responded with a counteroffer, which specifically provided that the parties agreed that the plaintiff was the real estate broker and acting as the defendant's agent. Accepting those facts as true, the plaintiff is entitled to relief on any reasonable review of the facts stated, and thus the inquiry is complete and the complaint must be declared legally sufficient. See, Campaign For Fiscal Equity, Inc. v. State of New York, 86 NY2d 307 (1995). As such, the defendants' motion to dismiss the plaintiff's complaint is denied.

The plaintiff has cross-moved for permission to amend its complaint to allege with [*3]greater particularity how the plaintiff was the procuring cause and direct and proximate link between the introduction, consummation and the sale of the defendants' property. The law is well settled that a party may amend its pleading at any time by leave of court and such leave shall be freely given unless prejudice would result to the non-moving party or the proposed amendment is plainly lacking in merit. See, Haga v. Pyke, 19 AD3d 1053 (4th Dept. 2005). Inasmuch as the defendants have not interposed an answer at this stage of the litigation there is clearly no prejudice that would result to them and based upon the foregoing discussions the proposed amendment did not lack merit. Therefore, the plaintiff's motion is granted and the defendants are not required to interpose and answer to the original complaint pursuant to CPLR §3211(f) at this time, but instead shall comply with the CPLR and answer the amended complaint.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendants' motion to dismiss the complaint is denied, and it is further

ORDERED, that the plaintiff's cross-motion to amend the complaint is granted, and it is further

ORDERED, that the parties are to appear at a conference before the Court on October29, 2007 at 10:30 a.m.

ENTER

Dated: October 12, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice

Footnotes

Footnote 1: After oral argument in this matter, the defendants provided additional submissions that were not directed or requested by the Court. In that late submission, the defendants contend that 19 NYCRR §175.15 prohibits the automatic continuation of the period of a listing agreement beyond the fixed termination date.