Opinion
13895 Index No. 651747/14 Case No. 2020-03452
05-20-2021
CAPIN & ASSOCIATES, INC., Plaintiff-Appellant, v. Isaac HERSKOVITZ et al., Defendants, 1895 Belmont LLC et al., Defendants-Respondents.
McDonnell Adels & Klestzick, Garden City (Michael J. Giordano of counsel), for appellant. Oved & Oved LLP, New York (Jonathan Lynn of counsel), for respondents.
McDonnell Adels & Klestzick, Garden City (Michael J. Giordano of counsel), for appellant.
Oved & Oved LLP, New York (Jonathan Lynn of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Mendez, JJ.
J.), entered June 1, 2020, which, to the extent appealed from as limited by the briefs, granted defendants 1895 Belmont LLC, 2078 Crotona LLC, 2079 Mohegan LLC, 2140 Daly LLC, 2132 Daly LLC, 990 Bronx Park South LLC, 984 Bronx Park South LLC, and 2146 Vyse LLC's motion for summary judgment dismissing plaintiff's amended complaint as against them, unanimously affirmed, without costs.
Plaintiff and defendants LLCs never entered into any explicit written or oral brokerage agreement concerning the sale of 11 buildings in Bronx, New York. Therefore, plaintiff's breach of contract claim was properly dismissed.
To be entitled to a commission under an implied contract theory, the broker must be a "procuring cause" of the ultimate transaction (see Greene v. Hellman, 51 N.Y.2d 197, 206–207, 433 N.Y.S.2d 75, 412 N.E.2d 1301 [1980] ). Here, the record demonstrates a lack of causal connection between plaintiff's efforts and the final transaction (see id.; RMB Props. v. American Realty Capital III, LLC, 55 Misc.3d 1202(A), *5–8, 2016 WL 8607330, affd 148 A.D.3d 585, 48 N.Y.S.3d 604 [1st Dept. 2017] ; Jagarnauth v. Massey Knakal Realty Servs., Inc., 104 A.D.3d 564, 565, 961 N.Y.S.2d 415 [1st Dept. 2013] ). Plaintiff sent the LLCs' principal Isaac Herskovitz financial documents regarding the buildings, informed Herskovitz about an offer from another buyer which had been accepted by seller but was still in negotiations regarding the brokerage fee, and arranged and walked Herskovitz through the properties along with a business manager for seller. Despite those actions. Neither Herskovitz nor the LLCs made any offer for the buildings through plaintiff, and plaintiff did not carry on any negotiations with seller on their behalf. In December 2013, plaintiff informed Herskovitz that the buildings were no longer for sale, which was the last contact between the parties prior to the consummated sale. Shortly thereafter, Herskovitz was contacted by another brokerage firm regarding the buildings. Herskovitz and the LLCs used the other brokerage firm to make an offer, enter into negotiations, conduct due diligence, and close the transaction. Accordingly, plaintiff was not the procuring cause of the sale, and thus, plaintiff's claim for implied contract was properly dismissed (see RMB Props., 148 A.D.3d at 585, 48 N.Y.S.3d 604 ; Mollyann, Inc. v. Demetriades, 206 A.D.2d 415, 415–416, 614 N.Y.S.2d 437 [2d Dept. 1994] ).
Because plaintiff was not the procuring cause of the sale, its claims for quantum meruit and unjust enrichment also fail (see RMB Props., 148 A.D.3d at 585, 48 N.Y.S.3d 604 ; Retail Advisors Inc. v. SLG 625 Lessee LLC, 138 A.D.3d 425, 425, 30 N.Y.S.3d 11 [1st Dept. 2016] ). There is no evidence Herskovitz and defendant LLCs acted in bad faith.