Coldwell Banker Real Estate Servs., Inc. v 529Atl. LLC
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Coldwell Banker Real Estate Servs., Inc. v 529 Atl. LLC 2008 NY Slip Op 31896(U) June 23, 2008 Supreme Court, Nassau County Docket Number: 2364-08/ Judge: Ira B. Warshawsky 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 ] \, ,,.. ." '. "'........................". ................ ........................ ......... """""""" "'" ,,,. '!" "', , ,. ', -" . . ,. .. !.. SCAN SHORT FORM ORDER SUPREME COURT : STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. IRA B. W ARSHA WSKY, Justice. TRIAL/IAS PART 10 COLDWELL BANKER REAL ESTATE SERVICES INC. d//a COLDWELL BANKER COMMERCIAL NRT WORLD CLASS REALTY , INC. d//a MILLENNIUM COMMERCIAL & INVESTMENT and YVE AND ASSOCIATES REAL ESTATE , INC. d/b/a CENTURY 21 YVE Plaintiffs INDEX NO. : 002364/2008 MOTION DATE: 04/22/2008 MOTION SEQUENCE: 001 and 002 -against - 529 ATLANTIC LLC and NEIL WAINLAND, DON W AINLAND and MARK W AINLAND Defendants. The following papers read on this motion: ........................ 1 Amended Notice of Motion , Affrmation , Affdavit & Exhibits Anexed Plaintiffs ' Memorandum of Law in Support ...................................................................... 2 ............................. 3 Notice of Cross Motion , Affirmations , Affidavit & Exhibits Anexed Affrmation in Reply and in Opposition to Cross Motion of Errol F. Margolin & ........................... ............... 4 Exhibits Anexed Reply Affrmation of Car Scott Goldinger ....................................................................... 5 i:i;' . 1 "". Plaintiffs Coldwell Baner Real Estate Services , Inc. and Yve and Associates Real WI&"' Judgment in their Estate , Inc. , move pursuant to CPLR 3212 for an order granting Sumar , and Mark Wainland action against defendants 529 Atlantic LLC, Neil Wainland , Don Wainland !!I\)!1 '1, ,I"" "1" l,,.r_," ."t and defendants cross-move for Sumar Judgment. 'J" 4I( . 1j. J""nL. ilJW. Mm.JJ"" !i1i)!,. '!. _"" -_. "" ," ' [* 2 ] Dorice " , '" , 2006. By Order of Hon. Justice This action was initiated in New York County on July 7 , the action was transferred to Nassau County Ling- Cohan on November 30 2007 Supreme Court. Shortly thereafter and without engaging in discovery, this motion was filed. However , defendant has identified no argument which would require discovery, and the issue is deemed suffciently ripe. propert Plaintiffs assert entitlement to the broker s commission on the sale of a by defendants to purchasers initially introduced by plaintiffs. Plaintiffs seek judgment for the commission fee and interest , plus attorney s fees and expenses. Facts On Januar 27 2005 , defendants entered into an agreement granting plaintiffs an , Oceanside exclusive right to sell or lease their propert located at 529- 559 Atlantic Avenue , in retur for a commission of 7% on the sale price. The contract specified the broker exclusive time period as continuing until July 27 , 2005; it was lengthened in a later agreement that until Januar 27 2006. Additionally, an " extension " provision ofthe agreement provided or leased within 180 days the Owner would pay the broker commission if the propert was sold propert during the from the expiry of the exclusivity period to a person who was shown the 7(C). See Brokerage Agreement , at exhibit C to the moving paper In October of2005, plaintiffs received an offer for purchase from one Ezra Simon. term of the agreement. Although the offer was below the listed price of the propert, defendants entered into sale negotiations with Simon , signing a purchase agreement on October 18 2005. Simon was unable to obtain a mortgage , however , and cancelled the contract pursuant to a mortgage contingency clause. This was not the end of Simon , though. Defendants and Simon later entered into an , for purchase ofthe agreement on Februar 13, 2006 , after the exclusivity period had expired propert with a money mortgage provided by the seller. Defendants closed on the agreement with Simon on May 2 , 2006 , and no brokerage commission was turned over to plaintiffs. Plaintiffs commenced this action seeking $126, 000 , constituting a 7% commission on the terms . of the agreement, plus interest attomey ' sfees , and expenses. .KI Jn.I!TIJJ :lI hIS cause of " To obtam sumar Judgment It IS necessar that the movant estabhsh ur as a matter oflaw in directing judgment' in his rlnlij._II .'I"..lft.J action or defense ' suffciently to warant the cO [* 3 ] , and he must do so by tender of evidentiar proof in admissible , 49 N. Y.2d 557 562 (1980). form. Zuckerman v. New York City TransitAuthority favor ( CPLR 3212 subd rb Plaintiffs predicate their summary judgment claim on two contentions: 1) the purchase agreement and sale between Defendants and Simon took place during the exclusivity period , and 2) the Plaintiffs were the procuring cause of the valid sale contract. Defendants contend that the sale took place after the exclusivity period , and , with the cancellation ofthe first purchase agreement with Simon rendering the contract null and void , the Februar 13, 2006 agreement with him represented an entirely new transaction outside the scope of the exclusivity agreement. Additionally, defendants contend plaintiffs failed in their ' to purchase the listed propert, requirement to produce a buyer ' ready, wiling, and able See ~ 18 , Defendants ' Affirmation. such , are not entitled to any commission. and as An " extension" clause is commonly included in a real estate listing contract to protect a broker from loss of compensation when a propert is sold by the owner after the termination of the listing contract to a person who was introduced to the propert by the broker. Picotte Real , an extension is Estate. Inc. v. Gau han , 107 A.D.2d 996 997 (3d Dep t 1985). In the instant case If within included in the exclusivity agreement between plaintiffs and defendants and states: " , exchange ( d) or leased to 180 days after the expiration of this agreement the property is sold with any person or pary to whom the propert was shown during the term of the listing, Owner agrees to pay the Broker the commission set forth herein as if the Broker has made the sale exchange or lease. " Brokerage Agreement , at exhibit C to the moving paper ~ 7(C). By Januar 27, 2006 , and the defendants ' own admission , the brokerage agreement expired on consequent deal with Simon took place on Februar 13 2006. Although defendants contend this agreement is after the listing agreement , and its extension , had expired , it is clearly well within the 180 day extension provision. Defendants ' additional contention that the Februar 13 agreement represents an entirely new transaction and is thus outside of the exclusivity contract is also rejected under the plain was shown the propert by the broker reading of the. extension andtheundisputed facts. Simon 1)f cAs a general" is g'ovemed by tne extension provision. sllcn, ny trars actiori With ' ard as principle , a real estate broker is entitled to a commission as the procuring cause of a sale where the broker generated a chain of circumstances which proximately led to the ultimate (sale) of the ," [* 4 ] premises. Corcoran Group, Inc. v. Morris , 107 AD2d 622 , 623 (1 SI Dep t 1985); Busher Co. Inc. v. Galbreath Ruffn Realty Co. Inc. , 22 AD2d 879 (1S1 Dep t 1964), Aff'd 15 NY2d 992. Even if the court accepts the defendant's contention that the purchase was an entirely new transaction which the evidence appears to disconfirm , the introduction of Simon by plaintiffs to the property is sufficient according to the language of the extension and established case law to earn the commission. Defendants ' also contend that the plaintiffs did not produce a buyer " ready, wiling and able " to purchase the propert. However it is well settled that absent an agreement to the contrar, a real estate broker ears his commission when he produces a par who is ready, wiling and able to purchase or lease on the terms set by the seller. Kaplon- Belo Assocs. v. Farelly, 221 AD2d 321 (2d Dep t 1995). Where the vendor ' accepts ' the purchaser by entering into a contract of sale with him , the broker is ordinarily relieved of the necessity of showing that the purchaser was ready, wiling and able to perform. The seller wil be presumed to have satisfied himself with respect to the purchaser s financial ability before entering into the contract. Agency. Broad & Cornelia Street. Inc. v. Lavigne , 97 AD2d 934 (3d Dep t 1983). In the instant case , the fact that defendants had to change the term of the sale , or that Simon defaulted at a later date , is irrelevant to the issue of whether he is a buyer " ready, wiling and able " at the time of the transaction creating the broker s fee. Defendants ' consumation of the sale of the propert to Simon evidences that the plaintiffs procured a buyer " ready, wiling and able. " Plaintiffs have thus satisfied their burden of demonstrating that as a matter of law the court should direct judgment in their favor. This action was brought against 529 Atlantic LLC and Neil Wainland , Don Wainland and Mark Wainland individually, who are also members of the LLC. Plaintiffs contend the individual defendants should be held liable for the debts of 529 Atlantic LLC. As evidence plaintiffs introduced the exclusivity agreements between the seller and broker , in which Neil Wainland signs as ' Owner. ' Defendants cross-move to have the action against the individual defendants dismissed. ThIS eVIdence does not estabhsh that Nell Wamland sIgned m hIS mdivIdual capacIty, and not as a member of the LLC on behalf of the corporation. " Piercing the corporate veil requires a showing that: (1) the owner exercised complete domination over the corporation with [* 5 ] -"""" --- "'''''''- " " .,. ~~~~ " ., ' .... '''''' ' "' respect to the transaction attacked , and (2) that such domination was used to commit a fraud or wrong against the plaintiff, resulting in the plaintiffs injur. Matter of Morris v. New York State Dept. of Taxation & Fin. , 82 NY2d 135 , 141 (1993). Plaintiffs have not met this standard. Furermore , there has been no evidence introduced that makes mention of Don Wainland and Mark Wainland , who are also named as defendants in the action. The court accepts defendants contention that the claim against the individual defendants should be dismissed. This contention is supported by evidence that plaintiffs were aware the owner of the propert LLC. was 529 Atlantic See Brokerage Agreement , at exhibit C to the moving paper (listing the ' name of owner ' at the beginning of the agreement as 529 Atlantic LLC) and Deposition of Susan Langdon, page 69- 71 (describing plaintiffs efforts to check the public records and determining 529 Atlantic LLC was the owner of the propert). Adequate remedy is available to plaintiffs under the debtor-creditor law to enforce judgment as necessar and allow for recovery from the LLC. On the basis of the foregoing, plaintiffs motion for summar judgment is granted in par and it is ORDERED and ADJUDGED that it have judgment against defendant 529 Atlantic LLC in the amount of$126 OOO , plus interest from May 2 2007, and taxable costs and disbursements and the Clerk of the County of Nassau is directed to enter judgment accordingly. It is fuher ORDERED that the complaint is dismissed against the individual defendants Neil Wainland Don Wainland , and Mark Wainland. Plaintiffs application for counsel fees shall be determined by an inquest to be held before Cour Attorney/Referee Thomas Dana (Room 206 , Second Floor) on August 14 , 2008 , at 10:00 A.M. It is fuher ORDERED that counsel for plaintiff shall serve defendant and fie with the Clerk of the Cour a Notice of Inquest and Note of Issue and pay all appropriate fees for the filing thereof on or before July 24 , 2008. Dated: June 23 2008 5- l.' , E0JC . ti;''"'' . '/ '''
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