Opinion
2013-03-21
S. David JAGARNAUTH, Plaintiff–Appellant, v. MASSEY KNAKAL REALTY SERVICES, INC., et al., Defendants–Respondents.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant. Steven Landy & Associates PLLC, New York (David A. Wolf of counsel), for respondents.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant. Steven Landy & Associates PLLC, New York (David A. Wolf of counsel), for respondents.
SWEENY, J.P., ACOSTA, ROMÁN, FEINMAN, CLARK, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 3, 2012, which, in this action seeking to recover a real estate co-brokerage commission, granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment on his complaint alleging causes of action for breach of contract, unjust enrichment, conversion, and tortious interference with contract, unanimously affirmed, with costs.
We find that the court properly granted defendants' motion for summary judgment, dismissing plaintiff's complaint, since the plain language of the co-brokerage agreement does not support plaintiff's breach of contract claim. The agreement provided for an April 15, 2004, expiration date for plaintiff to receive a co-brokerage commission on the sale of the property. It also provided that “in the event that a contract of sale has been executed by Owner and Prospective Buyer on or before said date, this agreement shall continue in full force and effect until the closing of the sale.” While plaintiff assisted with the negotiation of the first contract of sale that was executed on October 18, 2003, that contract of sale was properly cancelled by the seller on May 18, 2004. Plaintiff, who was not at all involved in the second contract of sale, executed more than two years later, was not entitled to a co-brokerage commission based on that contract of sale ( see Helmsley–Spear, Inc. v. 150 Broadway N.Y. Assoc., 251 A.D.2d 185, 186, 674 N.Y.S.2d 660 [1st Dept. 1998] ).
The evidence was sufficient to demonstrate that plaintiff was not the “procuring cause” of the sale of the property so as to earn a real estate brokerage commission ( see Greene v. Hellman, 51 N.Y.2d 197, 205–207, 433 N.Y.S.2d 75, 412 N.E.2d 1301 [1980];see Good Life Realty, Inc. v. Massey Knakal Realty of Manhattan, LLC, 93 A.D.3d 490, 491, 940 N.Y.S.2d 64 [1st Dept. 2012] ). The fact that plaintiff introduced the buyer and the sellers was insufficient to establish his entitlement to commissions resulting from the sale ( see Greene at 206–207, 433 N.Y.S.2d 75, 412 N.E.2d 1301). There was no “direct and proximate link” to the purchase ( see id.; Cushman & Wakefield, Inc. v. 214 E. 49th St. Corp., 218 A.D.2d 464, 467, 639 N.Y.S.2d 1012 [1st Dept. 1996], lv. denied88 N.Y.2d 816, 651 N.Y.S.2d 406, 674 N.E.2d 336 [1996] ), since plaintiff's own testimony supports the conclusion that he had no communications with the buyer about the property from 2004 until after the closing and that he did not discuss the transaction with the buyer, sellers or defendants from 2004 to 2007 ( see generally Brandenberg v. Waters Place Assoc., L.P., 17 A.D.3d 615, 794 N.Y.S.2d 80 [2d Dept. 2005] ).
Plaintiff is not entitled to recover a co-brokerage commission under a theory of unjust enrichment since his efforts, which occurred two years prior to the consummation of the sale of the property, were unsuccessful ( see Orenstein v. Brum, 27 A.D.3d 352, 353, 811 N.Y.S.2d 644 [1st Dept. 2006] ). In any event, plaintiff's claim is barred by the existence of the co-brokerage agreement governing this subject matter ( see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388–389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ).
A cause of action for conversion “cannot be predicated on a mere breach of contract” ( East End Labs., Inc. v. Sawaya, 79 A.D.3d 1095, 1096, 914 N.Y.S.2d 250 [2d Dept. 2010] ). In any event, plaintiff failed to establish that he has a legal right to possession of the co-brokerage commission ( see Weisman, Celler, Spett & Modlin v. Fein, 225 A.D.2d 508, 639 N.Y.S.2d 805 [1st Dept. 1996] ).
The court properly dismissed plaintiff's claim for tortious interference with contract, since he failed to prove the existence of a valid contract with a third party, and that there was breach of contract by the third-party buyer to support his claim ( see Benjamin Goldstein Prods. v. Fish, 198 A.D.2d 137, 138, 603 N.Y.S.2d 849 [1st Dept. 1993] ).