Opinion
2022-895 S C
12-21-2023
Jean Julian DELLY, Appellant, v. ARVY REALTY and Javier Morales, Respondents.
ORDERED that the judgment is modified by vacating the portion thereof that dismissed so much of the complaint as was asserted against defendant Arvy Realty and by providing that plaintiff is awarded the principal sum of $9,000 as against that defendant; as so modified, the judgment is affirmed, without costs.
In this action, plaintiff seeks the refund of a $9,000 real estate brokerage commission that he paid to Arvy Realty (Arvy) under protest. At a nonjury trial, it was established that Hector Villatoro is a licensed real estate broker doing business as Arvy Realty. It was undisputed that, after a buyer for plaintiff's property whom plaintiff had located without the assistance of a real estate broker was unable to secure financing, plaintiff contacted defendants. Defendant Javier Morales, a licensed real estate salesperson associated with Arvy (see Real Property Law § 442 [1] ) emailed documents, including a proposed brokerage agreement which Morales had presigned on behalf of Arvy, to plaintiff. The form proposed agreement was titled "Exclusive Right to Sell Agreement" but was modified, apparently by plaintiff, to state that it was "non-exclusive." Under its compensation provisions, the emailed presigned proposed agreement stated that plaintiff, as "owner," would pay the listing broker a total commission of 4% of the selling price, and specified how the payment would potentially be divided with a cooperating broker; however, plaintiff wrote into the agreement and initialed the words "total 2% from seller" before signing and returning the agreement to defendants. The agreement also included a provision "that no change, amendment, modification or termination of this AGREEMENT shall be binding on any party unless the same shall be in writing and signed by the parties."
Defendants procured a buyer for the property for a selling price of $450,000. At the November 18, 2021 closing, when plaintiff was presented with an invoice for $18,000, which represented a 4% commission, in order to enable the closing to proceed, plaintiff paid two checks to defendant Arvy Realty. One $9,000 check had apparently been printed in advance on an attorney's IOLA trust account and did not state any reservations. A second $9,000 check was handwritten on a separate attorney's IOLA trust account and stated, on the memo line at the bottom of the check, "PAID UNDER PROTEST BROKER FEE." In this action, plaintiff seeks a refund of the portion of the commission that he paid under protest.
Plaintiff never agreed to the 4% commission that defendants had written into the proposed right to sell agreement; nor did defendants ever agree in writing to plaintiff's condition, that he, as seller, would pay a total 2% commission. However, there is no requirement that a contract to pay compensation to a licensed real estate broker be in writing (see General Obligations Law § 5-701 ; see also Fidelity Bus. Brokers v Gamaldi , 190 AD2d 709, 709 [1993] ). Plaintiff's written statement that he would only pay a total 2% commission constituted a counteroffer, which defendants accepted by negotiating a sale of the property after receiving the counteroffer and before any different terms had been established (see Gator Hillside Vil., LLC v Schuckman Realty, Inc. , 158 AD3d 742 [2018] ; see also Daimon v Fridman , 5 AD3d 426, 427 [2005] ).
Plaintiff appropriately protested payment of $9,000 of the commission by doing so in writing at the time of the payment (see ECI Fin. Corp. v Resurrection Temple of Our Lord, Inc. , 213 AD3d 735, 736 [2023] ; Overbay, LLC v Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. , 185 AD3d 707, 709 [2020] ; see also Neuner v Newburgh City School Dist. , 92 AD2d 888, 888 [1983] ). Consequently, plaintiff is entitled to a refund of the $9,000 commission that he paid under protest.
However, plaintiff has not established that he is entitled to a judgment as against defendant Javier Morales. "An agent executing a contract on behalf of a disclosed principal is not liable for a breach of the contract unless it clearly appears that he or she intended to bind himself or herself personally" ( Y.B. Assoc. Group, LLC v Rubin , 216 AD3d 851, 853 [2023] [internal quotation marks omitted]; see Salzman Sign Co. v Beck , 10 NY2d 63 [1961] ; GMS Batching, Inc. v TADCO Constr. Corp. , 120 AD3d 549 [2014] ; Stamina Prods., Inc. v Zintec USA, Inc. , 90 AD3d 1021 [2011] ). Morales signed the proposed agreement as Arvy's agent, and there is nothing in the record to demonstrate that Morales intended to bind himself personally. Furthermore, plaintiff's two commission checks were made out to Arvy, not Morales. Thus, on this record, plaintiff has not demonstrated any basis for holding Morales liable.
Accordingly, the judgment is modified by vacating the portion thereof that dismissed so much of the complaint as was asserted against defendant Arvy Realty and by providing that plaintiff is awarded the principal sum of $9,000 as against that defendant.
EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur.