Buck Realty of Long Island, Inc. v Elliott
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Buck Realty of Long Island, Inc. v Elliott 2012 NY Slip Op 31616(U) June 5, 2012 Sup Ct, Nassau County Docket Number: 3525/11 Judge: Anthony F. Marano 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] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK PRESENT: HON. ANTHONY F. MANO Justice. TRIAL/IAS PART NASSAU COUNTY Buck Realty of Long Island, Inc., Plaintiff, MOTION #003 INDEX # 3525/11 -againstShawn Elliott, Shawn Elliott Luxury Homes, Inc., Shawn Elliott' s Luxury Homes and Estates LLC, Defendant. The following papers read on this motion: Notice of Motion .. X Answering Papers Reply. . . Motion by defendants Shawn Elliott, Shawn Elliott Luxury Homes, Inc., and Shawn Elliott' s Luxury Homes and Estates, LLC for summary judgment pursuant to CPLR 3212 dismissing the complaint of Buck Realty of Long Island, Inc. , is granted and judgment is awarded in favor of defendants as against plaintiff dismissing the complaint. This order concludes this proceeding. ). [* 2] Plaintiff Buck Realty of Long Island, Inc, (Buck) brings this action to recover commissions, alleging breach of contract, fraud and quantum meruit. The complaint alleges that November 1, 2009" on or about Tod Buckvar entered into a commission agreement with defendant Shawn Elliott on behalf of Buck Realty (the alleged oral Agreement). The terms of the alleged oral Agreement required Elliott to find a person willing and able to purchase property located at 20 Wenwood Drive, Brookville, New York (" the subject property abou t Buck alleges that Elliott sold the subj ect property on July 2010" and that Elliott has not paid the commission due. On this motion for summary judgment defendants Shawn Elliott, s Luxury Homes Shawn Elliott Luxury Homes, Inc. and Shawn Elliott' and Estates, LLC (collectively referred to as " Elliott" entering into any agreement with Buck and Seller, Wayne Steck, de f endan plaintiff' s principal, deny offer the affidavits of Shawn Elliott and Tod Buckvar, as well as documentary evidence. Wayne Steck avers that he retained Elliott as a listing agent to sell the subject property. He avers that Buck Realty had " role to play in referring " him to Luxury Estates and no role in his decision to retain Elliott as listing broker. Nor, he states, did he or his wife Lori consent to Buck entering any agreement with anyone regarding the sale. %) . [* 3] Regarding his relationship with Tod Buckvar avers that Buckvar was his wife Lori Steck (Buckvar), steck a friend for twenty years. He had introduced to Elliott when the Stecks bought the subject property, as they were planning to " flip " it. However their plans changed and they did not sell. Steck avers that over the next ten years or so he met Elliott as various fundraisers and other and they discussed real events, estate. At one point he and Elliott planned a real estate venture in East Quoque. The venture never happened. Steck avers that in 2010 when he and his wife decided to he contacted sell, Elliott to retain Luxury Estates. Steck avers that he chose Elliott for two reasons. Luxury Estates' office manager sold their house in Oyster Bay sixteen years prior "for top dollar Luxury Estates agreed to commission to four-and-a- cut its half percent standard five percent " and ( 5%) (4 Steck also avers that as a real estate broker who owns his own brokerage, he could have listed the property himself but did not because he trusted Elliott. Luxury Estates sold the property for $3, 200, 000. Luxury shared the 4 % commission with the Purchaser agent, Century 21 Laffey Associates. Steck refused to give Buck a copy of closing statement, and told him in colorful language that he had done nothing to earn a fee. Steck avers that Buck told him he was entitled to a fee based upon his introduction of Shawn Elliott " nine years earlier Shawn Elliott' s affidavit denies entering into any commission [* 4] agreement with Tod Buckvar , or plaintiff Buck Inc. in November of 2009 or any other time. Realty of Long Island, He states that Buck did not refer him to the Stecks, and points to the affidavit of Wayne Steck for confirmation. In support Elliott also listing agreement offers the Multiple Listing Service history for the subj ect property. and The listing agreement provides for a 4~ % commission rate. Both documents Homes and Estates as the listing $3, 995, 000. show Shawn Elliott' s Luxury agent, and an asking price of Significantly, the agreement is dated September 11, 2009, and the Multiple Listing shows a listing date of September 2009, both dates two months prior to the alleged oral In opposition, 25, agreement. Buckvar states that he had been to the home of Wayne and Lori Steck " innumerable " times as a social and business guest who came relied upon him to " advise them financially on many occas ions to give and that Wayne had him advice" His statements regarding the formation of the agreement are as follows: When Wayne and Lori Steck decided to sell the subject premises at 20 Wenwood Drive, Brookville, Long Island, I told them that I was calling Shawn Elliott because I believed he was the right broker to list the property with. I thereupon called Shawn Elliott personally from in their presence, and listing and sale of the would received half of his Wayne and Lori' s home discussed with him the subj ect property. We agreed I commission as being the referring real estate broker. He would be listing broker. Buckvar does not contend that the Stecks authorized him to call [* 5] Elliott on their behalf, and his affidavit does not indicate the date upon which he made the alleged call in the presence of Stecks at their residence. thus fails to address the critical issues of authorization and the timing raised in the i. e., how the pleadings, he could have referred the Stecks to Elliott at a time when Elliott already had a written listing agreement for the subject property. In order to obtain summary judgment a movant must " establish its defense or cause of action sufficiently to warrant a court' The party directing judgment in its favor as a matter of law must produce opposing the motion evidentiary proof in dmissible form sufficient to require a trial of material questions of fact" (Gilbert Frank Corp. Moreover, Co., 70 NY2d 966, v. Federal Ins. plaintiff cannot self -serving affidavits" avoid summary 54 AD3d 649, 651 Coby Group, judgment by tailored" by omission consequences of the facts previously alleged 967 (1988)). to avoid the (cf., Nemeroff Dept 2008)) . Defendants have offered affidavits and documentary Steck denies retaining plaintiff. offering evidence. Shawn Elliott denies entering into any agreement with plaintiff and offers documentary evidence in support. The listing agreement and multiple listing documents support Elliott' s factual assertion that he entered into a listing agreement with the Stecks two months before Buckvar s purported referral. Elliotts ' submissions make out a prima facie case for [* 6] (see, Nemeroff dismissal as a matter of law 649, 651 supra). Dept 2008), In opposition, 54 AD3d v. Coby Group, affidavit plaintiff offers only Buckvar' alleging a referral, which omits reference to the critical date legal support or alleged in the pleadings. authori ty , that the consent of the Stecks was not He argues, without required. there is " As to the cause of action for breach of contract, evidence " performed other than a self serving affidavit that Buck services at the sellers ' or the evidence that Buck sale of the subj defendants' behest, indeed, no had anything at all to do with the listing ect property. Buck attempts to assert a right to collect a commission for referring the Stecks to a real estate agent wi th whom agreement. they had already entered into written listing It is self evident that Buck could not bring about a listing which had already occurred. Buck alleged no other service warranting a commission. issue with regard to Thus Buck has failed to raise a triable breach of contract. Nor is there evidence to support a claim of quantum meruit, as plaintiff " proffered no proof as to either the work he performed or a \ reasonable value I Nemeroff v. Coby Group, for those alleged actually services" (see, 54 AD3d 649 (pt Dept 2008)) With respect to the final cause of action, a claim of must be based upon something extrinsic to a claim of fraud breach of contract and may not be premised upon the same allegations as a breach of contract (Guerrero v Valianco, 197 AD2d 667 (2d Dept [* 7] 1993). Plaintiff has alleged only a breach of contract. Based upon plaintiff' failure to raise triable issue, Elliotts' motion for summary judgement is granted and the complaint is dismissed. Dated: 6/5/2012 ENTERED JUN 13 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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