GFI Realty Servs., LLC v Long

Annotate this Case

Download PDF

GFI Realty Servs., LLC v Long 2022 NY Slip Op 33080(U) September 12, 2022 Supreme Court, New York County Docket Number: Index No. 656505/2020 Judge: Arthur F. Engoron Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 656505/2020 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 09/12/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 37 PART HON. ARTHUR F. ENGORON Justice -------------------X GFI REAL TY SERVICES, LLC, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 656505/2020 06/10/2022 004 -vDECISION + ORDER ON MOTION MARY LONG, Defendant. -------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 58, 59, 60, 61, 62, 63 were read on this motion for DEFAULT JUDGMENT Upon the foregoing documents and for the reasons stated hereinbelow, defendant's motion to dismiss is granted. Background On August 26, 2019, defendant, Mary Long ("Long"), as owner, entered into a three-month-long Exclusive Listing Agreement (the "Agreement") with plaintiff, GFI Realty Services, LLC ("GFI"), as broker, in which GFI was to help market and sell Long's real property located at 385 Monroe Street, Brooklyn, NY 11221 (the "Property"). NYSCEF Doc. No. 2. The Agreement provided that: As compensation for the services to be performed by GFI under this agreement, GFI shall be entitled to be paid a transaction fee (the "Transaction Fee") equal to 4% of the gross purchase price payable in connection with the Transaction. The Transaction Fee will be earned upon the acceptance of an offer to enter into the Transaction for not less than $3,850,00 or any other price or terms that Owner may accept, whether or not through the efforts of GFI, and shall be payable by Owner upon consummation of such a transaction, provided such minimum offer was accepted ... NYSCEF Doc. No. 2. Pursuant to the Agreement, GFI was additionally entitled to the Transaction Fee for a period of six months following the Agreement's termination on November 26, 2019, if the Property sold to a prospective party whom GFI had previously contacted while acting as Long's exclusive broker. NYSCEF Doc. No. 2. GFI agreed that a "complete list of such prospective parties shall be 656505/2020 GFI REALTY SERVICES, LLC vs. LONG, MARY Motion No. 004 [* 1] 1 of 4 Page 1 of4 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 91 INDEX NO. 656505/2020 RECEIVED NYSCEF: 09/12/2022 provided to owner within thirty (30) days following the effective date of the termination" of the Agreement, in order to obtain that post-Agreement Transaction Fee. Id. Long says that while represented by GFI she worked exclusively with an individual broker, third-party defendant Shlomo Antebi ("Antebi"). NYSCEF Doc. No. 39. Antebi executed the Agreement between Long and GFI and, according to Long, was her "only connection to·[GFI] during the entire process" of selling the Property. NYSCEF Doc. No. 60. As Long's broker at GFI, Antebi marketed the Property to prospective buyers, including to nonparty Eric Orlovsky of Center Street Capital ("Center Street Capital"). NYSCEF Doc. No. 40. At some point toward the end of October 2019 Antebi left GFI to become a principal at thirdparty defendant Atlas Realty Group Partners, LLC ("ARG"). NYSCEF Doc. No. 39 ~ 8-9. On November 26, 2019, the Agreement effectively terminated without Long having accepted any offers to sell the Property. On December 19, 2019, Antebi again pitched the Property in an email to Mr. Orlovsky of Center Street Capital. NYSCEF Doc. No. 43. At his deposition Antebi testified that he had an oral agreement to market the Property for Long. NYSCEF Doc. No. 39. By December 26, 2019, thirty days had passed since the termination of the Agreement and, according to Long, GFI never provided her a list of prospective parties it had contacted while acting as the Property's exclusive agent. NYSCEF Doc. No. 60. Nowhere in its papers does GFI allege that it ever provided Long with such a list. On January 27, 2020, Antebi circulated a deal memorandum for a $2,875,000 all-cash sale of the Property to "Eric Orlofsky (LLC to be formed)" with a commission to be paid to ARG. NYSCEF Doc. No. 44. On April 28, 2020, less than six months after the termination of the Agreement, Long entered into a contract of sale for the Property with non-party 385 Monroe Street LLC ("385 LLC"). NYSCEF Doc. Nos. 47. The sale closed August 26, 2020. NYSCEF Doc. No. 49. On November 23, 2020, GFI commenced the instant action, asserting a breach of contract, and seeking to recover a 4% Transaction Fee on the sale of the Property. NYSCEF Doc. No. 1. Plaintiff alleges that 385 LLC is an affiliate of Center Street Capital, as Mr. Orlovsky is a managing member of both companies, and Antebi had marketed the Propety to him at GFI while the Agreement was in force. NYSCEF Doc. Nos. 49, 54. On February 25, 2021, Long answered, denying the breach of contract claim and asserting five affirmative defenses (failure to state a cause of action; breach of contract; failure to name a necessary party; lack of standing; and unclean hands), three counterclaims (breach of contract; fyaud; and unjust enrichment), and a cross-claim against ARG. NYSCEF Doc. No. 13. 656505/2020 GFI REALTY SERVICES, LLC vs. LONG, MARY Motion No. 004 [* 2] 2 of 4 Page 2 of4 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 91 INDEX NO. 656505/2020 RECEIVED NYSCEF: 09/12/2022 On August 4, 2021, plaintiff served ARG and Antebi with subpoenas. NYSCEF Doc. No. 16. On September 15, 2021, GFI filed a proposed Order to Show Cause to enforce its subpoenas. NYSCEF Doc. No. 19. In a Decision and Order issued on November 16, 2021, this Court directed Antebi and ARG to produce all responsive documents and to sit for depositions. NYSCEF Doc. No. 31. On April 6, 2022, GFI filed a motion for summary judgment, pursuant to CPLR 3212, seeking a money judgment of $108,000 plus interest. NYSCEF Doc. No. 34. On the same day, GFI answered Long's counterclaims with general denials and twelve affirmative defenses. NYSCEF Doc. No. 38. On May 20, 2022, Long, as third-party plaintiff, filed a third-party summons and complaint against Antebi and ARG. NYSCEF Doc. No. 57. ·The third-party complaint has apparently not been served, and the third-party defendants have not yet appeared in this action. On May 22, 2022, Long filed the instant cross-motion to dismiss, without citing specific provisions of CPLR 3211, alleging that pl::}.intiffbreached the contract, failed to join necessary parties, and acted with unclean hands. NYSCEF Doc. Nos. 58. In a Decision and Order dated August 23, 2022, this Court denied plaintiffs motion for Summary Judgment, without prejudice to renew, for failure to comply with 22 NYCRR 202.8g. NYSCEF Doc. No. 65. Discussion Dismissal for failure to state a, cause of action pursuant to CPLR 321 l(a)(7) is warranted when, "afford[ing] the pleadings a liberal construction, tak[ing] the allegations of the complaint as true . and provid[ing] plaintiff the benefit ofevery possible inference," the complaint fails to assert to the court facts that would make out a cause of action. EBCI, Inc. v Goldman, Sachs & Co., 5 . NY3d 11, 19 (2005). Here, Long argues that GFI breached the Agreement first by not providing her with a list of prospective parties it had contacted while representing her, and, therefore, "cannot now benefit froin a contract [that] they failed to act in accordance" with. GFI does not deny that it failed to provide a list of prospective parties to Long but argues that its lapse is not fatal to its claim as Antebi undeniably marketed to Mr. Orlovsky while Long's agent at both GFI and at ARG and therefore his knowledge should have imputed onto Long. To that point GFI emphasizes that Long repeatedly and at length affirms that Antebi acted as her agent at both companies and notes that "[t]he general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it.'" Ctr. v Hampton Affiliates, Inc., 66 NY2d 782, 784 (1985) (citations omitted). 656505/2020 GFI REALTY SERVICES, LLC vs. LONG, MARY Motion No. 004 [* 3] 3 of 4 Pagel of4 INDEX NO. 656505/2020 FILED: NEW YORK COUNTY CLERK 09/12/2022 01:05 PM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 09/12/2022 Plaintiff is correct that Long should have been imputed with the knowledge that Antebi had contacted Mr. Orlovsky while working as her agent at both GFI and ARG. Further, the record contains a plausible argument that Long has a cause of action against Antebi for tortious interference with a contract due to his failure to disclose his knowledge to her. Schmidt & Schmidt, Inc. v Town of Charlton, 103 AD3d 1011, 1013 (3d Dep't 2013) ("To sustain a cause of action for tortious interference with contract, a plaintiff must show '(1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant's knowledge of that contract, (3) the defendant's intentional [and improper] inducement of the third party to breach that contract, and (4) damages'") (citations omitted). However, this Court need not reach questions of what Antebi did or did not tell Long as GFI breached the Agreement long before Long did. The clause in the plaintiff-drafted Agreement requiring GFI to proffer a list of prospective parties it had contacted to Long within 30 days of the termination of the Agreement is a mandatory "shall" clause not, a discretionary "may" clause. The purpose of that required list is two-fold: it gives an owner notice of who its nowformer broker had contacted while representing it, and reminds it of its continuing obligation to pay a Transaction Fee were it to sell to one of those parties within six months. The fact that Antebi was Long's broker at GFI for two-thirds of the three-month Agreement and then again while at ARG does not excuse GFI from failing to disclose to Long to whom it marketed her Property. Thus, Long did not breach the Agreement, as GFI breached it first by failing to provide a "complete list" (or any list) of prospective parties that it had pursued within the 30 day period after the expiration of the Agreement. Conclusion Therefore, defendant Mary Long's motion to dismiss the complaint ofplaintiff GFI Realty ~ Services, LLC, is granted, and the Clerk is hereby directed to enter judgment accordingly. 9/12/2022 DATE CHECK ONE: CASE DISPOSED GRANTED • . NON-FINAL DISPOSITION DENIED APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOIN'rMENT 656505/2020 GFI REALTY SERVICES, LLC vs. LONG, MARY Motion No. 004 [* 4] GRANTED IN PART 4 of 4 • • OTHER REFERENCE Page4of4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.