Barns & Farms Realty LLC v Novelli

[*1] Barns & Farms Realty LLC v Novelli 2009 NY Slip Op 52843(U) Decided on December 21, 2009 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2009
Supreme Court, Dutchess County

Barns & Farms Realty LLC, Plaintiff,

against

James Novelli, MICHELE BOUCHARD, KINSEY HAIGHT HILL, LLC, CLINTON I. SMULLYAN, JR., CATHERINE E. KINSEY, Defendants.



6264/08



DAVID BIRCH, ESQ.

Attorney for Plaintiff

934 State Route 82

Ancram, New York 12502

RICHARD I. CANTOR, ESQ.

TEAHAN & CONSTANTINO, ESQS.

Attorneys for Defendants

KINSEY HAIGHT HILL, LLC, CLINTON

I. SMULLYAN, JR. and CATHERINE E.

KINSEY

2780 South Road

P.O. Box 1969

Poughkeepsie, New York 12601-0969

JAMES NOVELLI

Defendant, Pro Se

539 North Wagner Avenue

Mamaroneck, New York 10543

MICHELE BOUCHARD

Defendant, Pro Se

581 Ocean Trail

Corolla, North Carolina 27927

James D. Pagones, J.

The plaintiff moves for a default judgment against defendants Novelli and Bouchard. The remaining defendants move for summary judgment dismissing the plaintiff's complaint against them.

DEFAULT JUDGMENT

The plaintiff has established on this application that defendants Novelli and Bouchard were served with a summons and unverified complaint. While the plaintiff asserts that the defendants did not appear or answer the complaint, the defendants have submitted documentary evidence that they responded in writing to the complaint. The court finds that these responses are sufficient to constitute an answer to the plaintiff's unverified complaint.

Even if the court were to find that defendants Novelli and Bouchard had failed to appear and answer the complaint, the plaintiff has failed to establish, on a prima facie basis, that it is entitled to judgment as a matter of law. First, the plaintiff's complaint fails to allege that it is a licensed real estate broker entitled to bring an action for commissions. On this motion, the plaintiff alleges that it is licensed to sell real estate in New York but provides a license that was effective March 12, 2009, substantially after the transaction at issue. Additionally, the plaintiff has failed to establish, on a prima facie basis, that the sale to defendant Kinsey Haight Hill, LLC violated any listing agreement with a licensed broker. For all of the foregoing reasons, it is ordered that the plaintiff's motion for a default judgment against defendants Novelli and Bouchard is denied.

SUMMARY JUDGMENT

It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

The plaintiff's third cause of action alleges that defendants Kinsey Haight Hill, LLC, Clinton I. Smullyan, Jr. and Catherine E. Kinsey "did tortiously interfere with the contractual relationship" between Barns & Farms Realty LLC and defendants Novelli and Bouchard. The plaintiff's fourth cause of action alleges that the same defendants engaged in "fraudulent conspiracy" to deprive the plaintiff of brokerage commissions. In order to establish a claim for tortious interference, the plaintiff must establish:

"the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom." (Lama Holding v. Smith Barney, Inc., 88 NY2d 413, 424 [1996].) [*2]

On this application, the defendants have established, on a prima facie basis, that they had no knowledge of any purported agreement between the plaintiff and defendants Novelli and Bouchard and undertook no conduct to procure the breach of any agreement with the plaintiff. Additionally, the defendants note that the plaintiff has failed to allege that it was a licensed real estate broker at the time of the subject transaction, which would be a prerequisite to establishing the existence of a valid contract between the plaintiff and defendants Novelli and Bouchard. In response to this motion, the plaintiff has failed to submit any evidence which would establish that there are triable issues of fact. While the plaintiff has provided a copy of a real estate broker's license to Barns & Farms Realty, LLC, that license is effective March 12, 2009 and does not establish that there was a valid license in existence at the time of the subject transaction. The plaintiff's fourth cause of action alleges a conspiracy among the defendants to deprive the plaintiff of a real estate broker's commission. Such a separate cause of action is not recognized in New York. (Lamothe & Lamothe v. Town of Oyster Bay, 2009 WL 2160983 [E.D.NY 2009].) Additionally, the plaintiff has failed to specifically allege the necessary elements for fraud as required by CPLR §3016. For all of the foregoing reasons, it is ordered that the defendants' motion is granted and the entire complaint is dismissed since the first two causes of action also require the plaintiff to allege that it was a licensed real estate broker at the time of the subject agreement.

The defendants have asserted a counterclaim against the plaintiff for sanctions and counsel fees pursuant to 22 NYCRR

§130-1.1. That section defines conduct as frivolous if:

"it is completely without merit and law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false."

On this application, the defendants have failed to establish, on a prima facie basis, that the plaintiff's complaint against them constitutes frivolous conduct. Therefore, it is ordered that the defendants' motion for summary judgment on their counterclaim against the plaintiff is denied. It is further ordered that the defendants' counterclaim is severed.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion.........................1

Affidavit-Birch.....................1-3

Exhibits............................A-D

2.Affirmation-Cantor.......................1-3

Exhibits............................A-D

3.Affidavit-Michele Bouchard and

James Novelli.......................1-5

Exhibits............................A-F [*3]

4.Notice of Motion.........................1-3

Affirmation-Cantor..................1-14

Affidavit-Clinton Smullyan..........1-3

Affidavit-Catherine Kinsey..........1-2

Affidavit-Shawn Pratt...............1-2

Exhibits............................A-R

Memorandum of Law...................1-25

5.Affidavit in Opposition-Birch............1-5

Exhibits............................A-C

6.Reply Affirmation-Cantor.................1-6

Exhibits............................A-O

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

December 21, 2009

ENTER

HON. JAMES D. PAGONES, A.J.S.C.