Opinion
151526/2016
02-03-2020
GLOBAL REALTY SERVICES, LLC and Schuckman Realty Inc., Plaintiffs, v. 4061 HYLAN LLC, Golden Hand of Staten Island, Inc. and Jhong Uhk Kim, Defendants.
Gaines and Fishler LLP, 2555 Richmond Ave, Staten Island, NY 10314, Plaintiffs' Attorney. Law Office of Howard File Esq., 260 Christopher Ln, Staten Island, NY 10314, Defendants’ Attorney
Gaines and Fishler LLP, 2555 Richmond Ave, Staten Island, NY 10314, Plaintiffs' Attorney.
Law Office of Howard File Esq., 260 Christopher Ln, Staten Island, NY 10314, Defendants’ Attorney
Catherine M. DiDomenico, J.
Plaintiff, Global Realty Services, LLC is a limited liability corporation located and operating in New York. Plaintiff, Schuckman Realty Inc. is a domestic corporation located and operating in New York. Both Plaintiffs in this action are real estate brokerages involved primarily in commercial transactions, including the procurement of "high value" tenants for vacant commercial properties throughout New York City. At trial, Global Realty appeared by its principal Howard Seidenfeld and Schuckman Realty appeared by its principal Stanley Schuckman. At all times the Plaintiffs in this action were represented by the Law Firm of Gaines & Fishler, LLP.
Defendant 4061 Hylan LLC. is a domestic limited liability real estate holding corporation located and operating in New York. Defendant Golden Hand is also a domestic corporation located and operating in New York. Defendant Jhong Uhk Kim is the principal owner / operator of these two corporations and a resident of New York State. Defendant Kim is a commercial real estate developer and landlord of various commercial properties in Staten Island. In addition to his real estate holdings, Defendant Kim is a sophisticated businessman involved in various other commercial enterprises including a chain of martial arts schools, and a restaurant. At all times the Defendants in this action were represented by the Law Firm of Howard File Esq.
The Plaintiffs commenced the present breach of contract action by the filing of a Summons and Complaint on November 10, 2016. Defendants filed a Verified Answer on June 6, 2012. After preliminary proceedings concluded, the matter was certified for a Jury Trial and referred to this Part for adjudication. However, at a pre-trial conference all parties stipulated to disband the Jury and proceed to a bench trial on all issues.
The matter proceeded to a bench trial on June 12, 2019 and concluded the next day on June 13, 2019. The Plaintiffs called three witnesses in support of their case, Howard Seidenfeld, Stanley Schuchman, and Steve Gilman. Plaintiffs offered five documents into evidence (Plaintiffs' 1-5). Defendants only called Mr. Kim as a witness and offered six documents into evidence (Defendants' A-F). Both parties stipulated to the admissibility of all the documents offered.
At trial, the Plaintiffs attempted to establish that they entered into a commercial brokerage agreement with the Defendants, specifically Defendant Kim, and that they are entitled to damages in the sum of $694,260 for the Defendants' failure to pay a commission for their services. Defendants, in opposition, deny the existence of a contract arguing that there was never a meeting of the minds on certain essential terms. In the alternative, Defendants raise various affirmative defenses to the enforcement of any alleged contract that may have been formed between the parties.
Decision
1. Breach of Contract
Plaintiffs' action sounds in contract. "To maintain an action for breach of contract, a party must show three elements: the existence of a contract, the defendant's breach of that contract, and damages." Kuzma v. Protective Ins. Co. , 2013 NY Slip Op 1809 (2d Dept. 2013). In order to establish the existence of an enforceable contract, a plaintiff must generally establish an offer, acceptance, consideration, mutual asset, and an intent to be bound. See Kolchins v. Evolution Mkts., Inc. 128 AD3d 47 (1st Dept. 2015). Generally, a meeting of the minds must be reached on all essential terms of an agreement. See Trylon Realty Corp. v. Di Martini , 34 NY2d 899 (1974). However, in relation to real estate brokerage contracts, an agreement may be express, or implied. See Joseph P. Day Realty Corp. v. Chera , 308 AD2d 148 (1st Dept. 2003). In the absence of an express agreement, an implied contract may be established by a "conscious appropriation of the labors of the broker in some cases by the mere acceptance of the labors of a broker." Sibbald v. Bethlehem Iron Co. , 83 N.Y.378 (1881); see also Friedland Realty Inc. v. Piazza , 273 AD2d 351 (2d Dept. 2000).
If a broker can establish that he or she had an express or implied contract, a commission is generally due when the broker produces a tenant who is ready, willing and able to agree to the landlord's lease terms. See Rusciano Realty Services, Ltd. v. Griffler , 62 NY2d 696 (1984). However, brokers and their clients are entitled to stipulate to a different due date for their commission if they so choose. See Graff v. Billet , 101 AD2d 355 (2d Dept. 1984). To establish entitlement to a commission, a broker must establish that they were the "procuring cause" of the resulting lease between landlord and tenant. See Curtis Props. Corp. v. Greif Cos. , 212 AD2d 259 (1st Dept. 1995) ; see also Siegel Consultants, Ltd. v. Nokia, Inc. , 2010 NY Slip Op 33840(U) (Sup. Ct. NY Cty. 2010). When a lease "admits the broker's performance of services and includes an express promise by the seller [or landlord] to pay the commission" that lease amounts to prima facie evidence that the broker is entitled to a commission. Halstead Brooklyn, LLC v. 96-98 Baltic, LLC , 49 AD3d 602 (2d Dept. 2008) ; see also Holiday Management Assoc., Inc. v. Albanese , 173 AD2d 775 (2d Dept. 1991).
Here, the representative of Plaintiff Global Realty, Howard Seidenfeld, credibly testified that sometime in 2005 he received a phone call from Defendant Kim wherein his services as a commercial real estate broker were requested. Specifically, Defendant Kim indicated that he was in the process of purchasing and consolidating several parcels of commercial real estate and would be seeking a high value commercial tenant (Tr. 6/12/19 pg. 13). As a result of this initial conversation Mr. Seidenfeld contacted the Director of Real Estate at CVS, Mr. Al Calegari, and scheduled a meeting with Defendant Kim. At the time of the Defendant's phone call, Mr. Seidenfeld was employed by Plaintiff Schuckman Realty, however, sometime in 2005 Mr. Seidenfeld left Schuckman Realty and opened Global Realty.
Defendant Kim, Mr. Calegari, and Mr. Seidenfeld subsequently met several times at Defendant Kim's restaurant to discuss and negotiate the terms of a potential tenancy. They also met to "walk the property" that Defendant Kim was intending to rent. In addition to these three-party meetings, Defendant Kim met individually with representatives of CVS. In or around June of 2006, Mr. Seidenfeld became aware that Defendant Kim and CVS were close to an agreement on lease terms. At or around that time, Mr. Seidenfeld received a phone call from Defendant Kim wherein the Defendant requested a letter outlining the amount of commission that would be payable, as he would not sign a lease without that information. During that conversation the parties discussed a commission in the amount of $100,000 payable upon securing city planning approvals, or a "full customary commission" if payment wasn't timely made. Mr. Seidenfeld credibly testified that Defendant Kim orally agreed to these terms. (Tr. 6/12/19 pgs. 19-20). In compliance with the Defendant's request, Plaintiff Global Realty reduced the oral commission agreement to a letter (dated June 29, 2006) which indicates that a commission of $100,000 would be due upon "securing city planning approvals." (Pl. Ex. 3). While there is an implication in the letter that a different amount might be due if the commission was not paid upon securing the approvals , no alternate commission, or method of calculating an alternate commission, is indicated. Moreover, while the letter indicates that a formal commission agreement would be forwarded to the Defendants, Mr. Seidenfeld admits that he never actually prepared that document. Defendant Kim never responded to the letter.
The relevant section reads "I am pleased to confirm to you that Schuckman Realty Inc. and Global Realty Services, LLC have agreed to co-broke the leasing commission in connection with the lease of the above highlighted property to CVS in the amount of $100,000 assuming such payments will be paid in full upon you, as landlord, or any other entity controlled by you securing city planning approvals."
On or about April 27, 2015 the Plaintiffs jointly sent Defendant Kim a pair of invoices demanding the agreed upon $100,000 commission. (Pl. Ex. 5). As per a separate agreement between the Plaintiffs as co-brokers, Global Realty Services demanded payment in the amount of $60,000 and Schuckman Realty demanded payment in the amount of $40,000 . Both invoices indicate that payment would be due upon "city planning approval" even though those approvals were granted over two years before the date of the invoice.
Plaintiff Schuckman agreed to 40% of the commission as Mr. Seidenfeld was employed by him at the beginning of lease negotiations, Plaintiff Global would receive the remaining 60% as the agreement was reached after Mr. Seidenfeld left Schuckman's employ.
Defendant Kim's recollection of the relevant events is significantly different. According to the Defendant, it was Mr. Seidenfeld who called him and suggested that CVS might be interested in renting his property. Defendant Kim admits that there was one initial meeting between himself, Mr. Calegari from CVS and Mr. Seidenfeld, but then claims that both Mr. Calegari and Mr. Seidenfeld "disappeared" shortly thereafter (Tr. 6/13/19 pg.12). Defendant Kim could not recall if they ever had a meeting again regarding this property. Defendant also disputes that Mr. Seidenfeld participated in negotiations regarding the CVS lease. He claims that he hired an attorney in Connecticut to handle the negotiations, however he could not recall the attorney's name. (Tr. 6/13/19 pg.13). Defendant Kim does admit that he contacted Mr. Seidenfeld to inquire about the amount of the commission that he owed. (Tr. 6/13/19 pg.22). However, he claims that he never received the June 29th letter setting forth the $100,000 amount or the April 2015 invoices. The Court does not credit Defendant Kim's recollection of these events.
While the parties disagree as to how CVS was obtained as a tenant, and how the lease terms were negotiated, most of the relevant facts following the signing of the lease are undisputed. CVS entered into a commercial real estate lease on May 6, 2008. That lease was signed by Defendant Kim and representatives from CVS. Both Plaintiffs in this action are identified in the lease as "brokers" although they did not sign the contract. (Pl. Ex. 1, Part I Para. 23). The lease clearly states that the "Landlord [Defendant Kim] warrants and agrees that it shall be solely responsible for any and all brokerage commissions owing to said Broker(s), as a result of the negotiation and execution of this Lease." (Pl. Ex. 1, Pg 25). City Planning approvals were received by the Defendants on or about May 9, 2012. (Def. Ex. D). CVS took occupancy of the building in or around October of 2015 and remains there to date as an active commercial tenant.
The tenant named in the contract is actually "Hook-SuperX, L.L.C." a subsidiary corporation of CVS, but the lease is signed by CVS representatives, guaranteed by CVS, and a CVS store operates at the location.
As indicated above, in order to establish their entitlement to a commission the Plaintiffs were required to establish that they entered into an express or implied contract with the Defendant. See Gluck & Co. Realtors, LLC v. Burger King Corp. , 164 AD3d 562 (2d Dept. 2018). The Plaintiffs have met their burden at trial. The initial offer was made by Defendant Kim when he called Mr. Seidenfeld and requested his services. Mr. Seidenfeld immediately accepted and began the process of finding a tenant. Mr. Seidenfeld found a potential tenant (CVS) in 2005. In or around June of 2006, CVS agreed to the Defendant Kim's lease terms and thus became a viable, or "ready willing and able" tenant. At trial the Plaintiffs established that they not only introduced Defendant Kim to the CVS representatives, but also that they helped negotiate terms over various meetings. Accordingly, there is sufficient evidence in the record to find that the Plaintiffs were the "procuring cause" of the resulting lease. See Zere Real Estate Servs., Inc. v. Parr Gen. Contr. Co., Inc. , 102 AD3d 770 (2d Dept. 2013).
In June of 2006 Defendant Kim and Mr. Seidenfeld orally discussed terms of compensation over the telephone, and it was agreed that the sum of $100,000 would be payable at the time of City Planning approval, or "some other customary fee" would be payable thereafter. When Defendant Kim requested that the commission agreement be reduced to a writing, the Plaintiffs drafted the June 29th letter. Regardless of whether Defendant Kim received the letter, the parties completed the formation of an express contract orally by agreeing that compensation would be at least $100,000 . Moreover, while Defendant Kim now disputes that either Plaintiff served as his broker in this real estate transaction, he expressly acknowledged their services in the lease that he signed with CVS. The lease clearly identifies both Plaintiffs as brokers and indicates that Defendant Kim, as an individual, would be the party solely responsible for their commission. This acknowledgment is prima facie evidence that the Plaintiffs are entitled to a commission. See William B. May Co. v. Monaco Associates , 80 AD2d 798 (1st Dept. 1981) ; see also Halstead Brooklyn, LLC v. 96-98 Baltic, LLC , 49 AD3d 602 (2d Dept. 2008).
While this Court has found sufficient evidence in the record to determine that the parties entered into an express contract, the Plaintiffs would also be entitled to recover under a theory of implied contract. It is undisputed that the Plaintiffs are licensed real estate brokers. It is further undisputed that the Plaintiffs introduced Defendant Kim to the CVS representative, and that at least one group meeting took place between the parties and the CVS representative to negotiate lease terms. Moreover, this Court credits Mr. Seidenfeld' s testimony that there were actually multiple negotiation meetings between the parties and CVS. Accordingly, the Plaintiffs have established that their efforts were a procuring cause of the lease between CVS and the Defendant, and moreover, that the Defendant consciously accepted and benefitted from their services. As a result, the Plaintiffs are equally entitled to recover a commission under implied contract theory. See Gronich & Co. v. 649 Broadway Equities Co. , 169 AD2d 600 (1st Dept. 1991) ; see also Country Harbor Realty, Inc. v. Sullivan , 23 AD3d 606 (2d Dept. 2005).
After establishing the formation of a contract, express or implied, the Plaintiffs bear the burden of establishing a breach of that contract. See Ayers v. City of Mount Vernon , 176 AD3d 766 (2d Dept. 2019). It is uncontested that Defendant Kim failed to pay any commission to the Plaintiffs despite the 2015 invoice demanding payment, and an acknowledgment of his obligation to pay in the 2008 lease. This failure to pay, after the Plaintiff procured a viable tenant, and city planning approvals were obtained, amounts to a clear breach of the parties' contract.
2. Statute of Limitations
Defendants raise an affirmative statute of limitations defense to the Plaintiffs' breach of contract claim. For a breach of contract action to be timely it must be filed within six years of when the breach occurred. See CPLR § 213(2) ; see also 2138747 Ontario, Inc. v. Samsung C & T Corp. 144 AD3d 122 (1st Dept. 2016). When a contract cause of action seeks to recover a sum of money owed, the statute of limitations is triggered when the party that is owed money first has the right to demand payment, not when a demand for payment is actually made. See Fairlane Fin. Corp. v. Scipione , 174 AD3d 577 (2d Dept. 2019). Here, Defendant Kim breached the commercial real estate contract when he failed to pay the broker's commission following City Planning Commission approval in July of 2012, as this was the parties agreed upon date for payment. (Tr. 6/12/19 pg. 19). While the Plaintiffs waited approximately three years to send an invoice demanding payment, the statute does not run from the demand, but from the breach. See Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co. , 18 NY3d 765 (2012). As the present action was commenced with the filing of a Summons and Complaint in November of 2016, approximately four years after the date of breach, the action is timely.
3. Statute of Frauds
Defendants raise a second affirmative defense, namely that any alleged agreement between the parties was never reduced to a writing and thus is void ab initio due to a violation of the Statute of Frauds. In this regard Plaintiffs concede that they never provided the Defendants with a formal written agreement. (Tr. 6/12/19 pgs. 73;133). At the onset, it is worth noting that certain real estate commission agreements are automatically subject to the Statute of Frauds. See e.g. Camhi v. Tedesco Realty, LLC , 105 AD3d 795 (2d Dept. 2013). However, real estate commission agreements, whether express or implied, entered into by licensed real estate brokers are specifically exempt from this rule. See General Obligations Law § 5-701(A)(10) ; see also Elhanani v. Kuzinez , 172 AD3d 590 (1st Dept. 590). "A commission agreement with a real estate broker does not fall within the Statute of Frauds." Sholom & Zuckerbrot Realty Corp. v. Citibank, N.A. , 205 AD2d 336 (1st Dept. 1994). As it is undisputed that the Plaintiffs are licensed real estate brokers, section (A)(10) of the Statute of Frauds does not apply.
Defendants also rely upon General Obligations Law § 5-701 (A)(1) which requires a written contract for any agreement that by its very terms is incapable of being fully performed within one year. See City Natl. Bank v. Morelli Ratner, P.C. , 170 AD3d 434 (1st Dept. 2019). As indicated above, the parties agreed that the Plaintiffs' broker's commission would be due upon the Defendants receiving approval from the City Planning Commission. At the time the parties entered into the agreement it was unclear whether City Planning approval could be achieved in one year, although both parties now agree that it was extremely unlikely. While it actually took several years to obtain the necessary approvals, this Court cannot find, as a matter of fact or law, that the City Planning approvals could not have been be received within one years' time. The Statute of Frauds only prohibits oral "agreements which, by their terms , have absolutely no possibility in fact and law of full performance within one year." Star v. Akdeniz , 162 AD3d 948 (2d Dept. 2018). As long as an agreement may be fairly and reasonably interpreted such that it may theoretically be performed within a year, the Statute of Frauds will not act as a bar, no matter how "unexpected, unlikely, or even improbable" it is that full performance will occur during that time frame. See Radnay v. Charge & Ride, Inc. 266 AD2d 194 (2d Dept. 1999). Accordingly, a written contract was not necessary. See Cottone v. Selective Surfaces, Inc. , 68 AD3d 1038 (2d Dept. 2009) ; see also JNG Constr., Ltd. v. Roussopoulos , 135 AD3d 709 (2d Dept. 2016).
In any event, the various documents offered at trial, when viewed in their entirety, amount to a sufficient memorialization of the parties' agreement to satisfy the statute of frauds even if it applied. An agreement may be satisfied by multiple writings, signed and unsigned, providing that "all of the terms must be set out and at least one writing establishing a contractual relationship, must bear the signature of the party to be charged." Taylor Diversified Corporate Servs., Inc. v AMBAC Assur. Corp. , 81 AD3d 810 (2d Dept. 2011). Here, the various emails, invoices, and letters sent to the Defendants establish that the Plaintiffs were acting as commercial real estate brokers in return for a commission of at least $100,000 . While these initial written communications were not responded to by Defendant Kim, he assented to their terms when he specifically named the Plaintiffs as "brokers" in the CVS lease and acknowledged therein that it was his sole responsibility, as landlord, to pay their commission. (Pl. Ex. 1, Pg. 25). As this lease was signed by the Defendant, the party to be charged, these various writings, when read in conjunction, establish all the necessary terms of the parties' agreement. See Crabtree v. Elizabeth Arden Sales Corp. , 305 N.Y.48 (1953); see also Kelly v. P & G Ventures 1, LLC, 148 AD3d 1002 (2d Dept. 2017).
4. Lack of Ownership
In addition to the affirmative defenses indicated above, Defendant Kim argues that it was legally impossible to reach an agreement on terms of a real estate brokerage contract, because at the time he retained the Plaintiffs' services, he did not own all of the properties that he sought to rent. This argument is unpersuasive. As Mr. Seidenfeld and Mr. Schuckman both credibly testified, the parties were aware at the time of negotiation that the Defendants intended to enter into a "assemblage contract." As described by Mr. Seidenfeld, an assemblage contract occurs when a potential landlord assembles a number of parcels of real estate, and a broker finds a tenant for when all parcels are obtained. (Tr. 6/12/19, pgs. 83-84). Notably, Defendant Kim was ultimately successful in obtaining all of the relevant parcels of land. In any event, unless explicitly stated, a landlord's obligation to pay a brokerage commission is not conditioned upon their actual ability to lease a parcel of property, even if the landlord does not actually own that property. See B & H Assoc. of NY, LLC v. Fairley , 148 AD3d 1097 (2d Dept. 2017) ; see also Kalmon Dolgin Affiliates v. Estate of George H. Nutman , 172 AD2d 917 (3rd Dept. 1991) ; Sholom & Zuckerbrot Realty Corp., v. Citibank, N.A. , 205 AD2d 336 (1st Dept. 1994).
5. Damages
As the Plaintiffs have established the existence of a commercial real estate brokerage contract, and that Defendant Kim breached that contract by failing to pay a broker's commission, the Court must now consider the Plaintiffs' claim for damages. In their Verified Summons and Complaint, the Plaintiffs seek the sum of $694,260 in damages. At trial, Mr. Seidenfeld attempted to establish what a "reasonable" or "customary" commission would be in relation to a similar commercial real estate brokerage agreement. However, he also credibly testified that each commission agreement is specific as to how and when the broker will be paid, and that conditions of payment can vary greatly from contract to contract. Specifically, Mr. Seidenfeld testified that the customary commission to be paid is "whatever is agreed upon in the agreement." (Tr. 6/12/19, pgs. 74-76).
In addition to Mr. Seidenfeld's testimony regarding his understanding of the commission at issue, the Plaintiffs called a second commercial real estate broker as a witness in an attempt to establish a range of reasonable damages. Plaintiffs called Steve Gilman, who was qualified by this Court as a "real estate broker with no particular specialty in determining commissions." (Tr. 6/12/19 pg. 98). As such, this Court attributes very little weight to his testimony on the subject of damages. Like Mr. Seidenfeld, Mr. Gilman credibly testified that every commercial real estate contract differs as to how the commission is calculated, in fact, he agreed that "no two deals are alike." (Tr. 6/12/19 pg. 110). However, he then speculated that a reasonable "commission range" for the present transaction would be anywhere from $280,000 to $560,000 . (Tr. 6/12/19 pg. 100). Notably, Mr. Gilman offered this opinion without any knowledge of the specific details of the present agreement.
The burden of proof is on the Plaintiff to establish damages. See J.R. Loftus, Inc. v. White , 85 NY2d 874 (1995). When determining an appropriate amount of damages in a breach of contract action the Court is authorized to award "general damages" that flow naturally and directly from the breach. See 34-35th Corp. v. 1-10 Indus. Assoc., LLC , 103 AD3d 709 (2d Dept. 2013). The Court can also award "consequential damages" if those damages were contemplated by the parties and foreseeable at the time the contract was entered into. See Panasia Estates, Inc. v. Hudson Ins. Co. , 10 NY3d 200 (2008). Damages flowing from a breach of contract must be non-speculative in nature. See Rakylar v. Washington Mut. Bank, 51 AD3d 995 (2d Dept. 2008) ; see also Rondeau v. Berman , 161 AD3d 429 (1st Dept. 2018).
Here, the various calculations set forth by the Plaintiff at trial regarding what the commission might have been, or could reasonably be, are clearly speculative. There is no evidence in the record that the Defendant agreed to, or could have reasonably foreseen, any of the methods used to calculate a commission as set forth by the Plaintiff, or his witness, at trial. Moreover, there is no documentation setting forth a means of calculation, which the Plaintiff indicated would be standard for such a contract, if a sum certain was not payable. (Tr. 6/12/19 pgs. 75-76). However, Mr. Seidenfeld credibly testified that Defendant Kim orally agreed to pay the sum of $100,000 as a commission at or around the time the lease terms were being finalized. This amount is also reflected in the June 2006 letter and the April 2015 invoices which were send to the Defendants by both Plaintiffs. While it may be true that the Defendant Kim was on notice that the Plaintiffs would expect a higher commission if the $100,000 was not timely paid, he was never on notice of what that amount might be. This failure falls solely on Plaintiff Global, as Mr. Seidenfeld indicated in the June 2006 letter that he would "prepare a formal Commission Agreement," which would set forth the method of calculating a commission, but he failed to do so. Notably, the Plaintiffs testified that they had no out of pocket expenses related to this transaction other than the value of their time.
After considering all of the evidence offered at trial, and the testimony of all parties, this Court awards the Plaintiffs the combined sum of $100,000 in damages. $60,000 of this amount shall be apportioned to compensate Plaintiff Global Realty and $40,000 to compensate Plaintiff Schuckman Realty. This 60/40 distribution was agreed upon between the Plaintiffs and set forth in the April 2015 invoices. The Court finds that a $100,000 commission, which was orally agreed to by Defendant Kim, and memorialized in documentary evidence, is a more equitable measure of damages than the speculative approximations of what the Plaintiffs' commission might be under a similar real estate contract. This ruling is supported by Mr. Seidenfeld's admission that any method of calculation would normally be contained in a formal commission agreement, and that he failed to prepare one, despite his indication to the Defendants that he would. The Plaintiffs are also entitled to interest at the statutory rate of 9% running from the date of breach, May 9, 2012. See CPLR § 5001, § 5004.
The Judgment awarded herein, together with interest, shall be payable by Defendant Jhong Uhk Kim personally, and is not being issued against the corporate Defendants 4051 Hylan LLC, or Golden Hand of Staten Island, Inc. There is no evidence in the record to support a judgment against either of these entities. In this regard, Defendant Kim personally signed the CVS lease which acknowledged the Plaintiffs' right to a commission as "an individual." (Pl. Ex. 1 Pg. 31). There is no indication in that lease that either corporate defendant was a party to the transaction in any way. Moreover, there is no indication in the record that any of Defendant Kim's conversations with the Plaintiffs were under the guise of him representing either corporate entity. Rather, at all times it appears that Defendant Kim was speaking and acting an in individual capacity. Accordingly, as there is no evidence in the record that either Defendant 4051 Hylan LLC or Defendant Golden Hand entered into a contract with the Plaintiffs, all causes of action against them are hereby dismissed.
All issues and claims not addressed directly herein are hereby denied. Specifically, the Plaintiffs' alternative causes of action for quantum meruit and unjust enrichment are hereby dismissed as a matter of law because they constitute "indistinguishable disputes regarding the same operative facts as the claim for breach of contract." See Sears Holdings Mgt. Corp. v. Rockaway Realty Assoc., LP , 176 AD3d 433 (1st Dept. 2019). "A claim for unjust enrichment, or quasi contract, may not be maintained where a contract exists between the parties covering the same subject matter." Goldstein v. CIBC World Mkts. Corp. , 6 AD3d 295 (1st Dept. 2004).
This constitutes the Decision and Order of the Court after trial. Plaintiffs may submit a formal Money Judgment for signature encompassing this Decision's findings on Notice to the Defendants counsel. That Judgment shall either include a calculation of statutory interest or indicate that statutory interest shall be calculated by the Judgment Clerk in compliance with the amounts and dates set forth herein.