Opinion
17315/04.
Decided August 18, 2008.
Michael J. Spithogiannis, Esq., Dollinger, Gonski Grossman, Carle Place, New York, Attorney for Plaintiff.
Richard Y. Im, Esq., Herrick, Feinstein LLP, New York, New York, Attorney for Defendant.
In this action by plaintiff Premium Financial and Realty Services, Inc. (plaintiff) to recover a mortgage brokerage commission, defendant 233 Broadway Owners, LLC (defendant) moves for summary judgment dismissing plaintiff's complaint as against it.
Plaintiff is a licensed real estate broker whose primary business is obtaining commercial mortgage loans for property owners and corporate financing. Anthony F. Marando (Marando) is plaintiff's sole officer, director, and shareholder. Defendant is the owner of the Woolworth Building, which is located at 233 Broadway, in downtown Manhattan. In 2002, the Woolworth Building was encumbered by a mortgage held by Lehman Brothers with approximately $195,000,000 due and owing on that mortgage. Defendant, therefore, needed to refinance, and had allegedly been looking to do so, without success, for one and a half years. Joseph Bald, who is related through marriage to one of defendant's principals, Rubin Schron, informed Marando that defendant needed refinancing of $200,000,000 and to contact Barry Pincus (Pincus), who was the vice-president of commercial properties of Cammeby's Management Co., LLC (Cammeby's), which was then the asset manager for the Woolworth Building.
Marando scheduled a meeting with Pincus, which took place on September 26, 2002. At the time of that meeting, defendant had already received a letter of intent from German American Capital Corp., a subsidiary of Deutche Bank (Deutche Bank), but this loan was for only $165,000,000 and on a floating rate basis, whereas defendant needed a lender to provide a loan for $200,000,000 and preferred a fixed rate loan. Marando claims that other than Deutsche Bank, Pincus did not tell him that there were any other lenders that had formal discussions with defendant or that any other brokers had been involved in looking for refinancing for defendant.
Marando claims that at the September 26, 2002 meeting, Pincus hired plaintiff as defendant's mortgage broker to apply for mortgage loan financing of $200,000,000 for the Woolworth Building. Marando further claims that he and Pincus negotiated and agreed on a brokerage commission fee of 1% of the loan amount to be paid by defendant when the loan was made. Pincus, however, denies that he agreed to a 1% brokerage commission fee.
According to Marando, he also indicated to Pincus, at the September 26, 2002 meeting, that he would first approach insurance companies since they would provide fixed rate financing, as opposed to floating rate financing. Marando asserts, however, that Pincus never told him to only contact insurance companies or that he should not go to "Wall Street" lenders. Pincus claims, on the other hand, that at this first meeting with Marando, he advised Marando that he was only to contact life insurance companies for rates on a fixed rate mortgage.
In order to attract potential lenders, Marando obtained from Pincus important documents and detailed information regarding defendant's gross and net operating income, cash flow, and information regarding a prospective new lease with New York University (NYU) for approximately 100,000 square feet of the Woolworth Building. On September 27, 2002, Marando contacted Eric Miller (Miller), the property controller for Cammeby's, and received, via fax, an Argus Run, which is a software program used by property managers from which the data compiled can be used to prepare financial statements and report on the status of the property. Marando additionally received rent roll and related income and expense information for the Woolworth Building. On October 1, 2002, Marando again contacted Miller and obtained, via fax, an updated Argus Run, evidencing the projected 100,000 square foot NYU tenancy. He also received, via e-mail, a copy of the latest Argus Run from Robert Egolkin of Cammeby's. In addition, Marando prepared an Executive Loan Summary based on the information and loan requirements gathered from defendant, in which he set forth his determined value of the Woolworth Building and other salient facts.
In the beginning of October 2002, Marando met with Pincus and provided him with a copy of a brokerage agreement dated October 1, 2002, which he had prepared for defendant's signature. That brokerage agreement did not limit or restrict plaintiff's authority and reflected a 1% brokerage fee for plaintiff. Marando claims that Pincus told him that defendant would sign it when he found an interested lender and had "something in writing," such as a letter of intent or commitment from an institution. Marando further claims that Pincus never objected to any of the terms of the brokerage agreement in all of his meetings or conversations with him.
Between October 1, 2002 and October 15, 2002, Marando, using the Executive Loan Summary which he had prepared, and the Argus Run, the rent roll and the current term tenant summary, and the schedule of cash flow that he had received from defendant, contacted and followed-up with several blue-chip insurance companies. Although Marando received responses showing different levels of interest among these life insurance company prospects, none of them were prepared to commit themselves to making the loan required by defendant. By October 15, 2005, all of the life insurance companies had advised Marando that they were not interested in the deal.
Marando claims to have kept in contact with and updated defendant, through Pincus, throughout this process. According to Marando, Pincus told him that Lehman Brothers was putting pressure on defendant with respect to the outstanding floating rate loan held by it against the Woolworth Building. Marando, consequently, contacted "Wall Street" lenders, which included Bear Stearns.
On October 16, 2002, Marando contacted Joseph Rubino (Rubino), who was the director of the real estate finance securitization group at Credit Suisse First Boston (CSFB), about the refinancing of the Woolworth Building and how it might be structured. Rubino allegedly told him that he would try to get the loan for him. Marando followed up the October 16, 2002 call to Rubino with an e-mail to him, which included the Argus Run and his Executive Loan Summary. Due to the size of the Woolworth Building loan and because it required structuring and Rubino did not handle complex transactions of this magnitude, Rubino passed the information and referred the deal to Anthony Orso (Orso), a managing director who was the head of a lending group at CSFB (Orso's group), which included Orso, Michael Lehrman (Lehrman), Peter Hills (Hills), and Jonathan Trauben (Trauben). Orso's group specialized mostly in large fixed rate and floating rate deals that might require structuring. According to Rubino, Orso told him that he already knew and had a relationship with defendant.
On October 18, 2002, Rubino advised Marando that he had given the documents to Orso's group. Rubino also told Marando that a meeting was scheduled to be held on October 28, 2002 between CSFB directly with Eli Schron (Schron), a vice-president of Cammeby's and one of defendant's principals (and the son of Rubin Schron). Marando claims that Pincus called him on October 24, 2002 and requested that he forward whatever information he had provided to CSFB because of the scheduled meeting, and that he sent e-mails to Pincus with the information, including the Argus Run and his Executive Loan Summary, and also pledged his availability to attend to facilitate the discussions. Marando further claims that Pincus advised him that there was no need for him to attend the meeting.
After the October 28, 2002 meeting, Marando contacted Rubino, and Rubino advised him that the meeting had taken place and was attended by Pincus and Schron, on behalf of defendant, and Orso, Hills, Trauben, and Lehrman, on behalf of CSFB. Marando also spoke to Pincus after the meeting, who allegedly told him that everything was going along smoothly. On December 16, 2002, Marando sent a letter to Pincus, by fax, requesting that defendant sign the brokerage agreement since the negotiations were being finalized. That evening, Marando received a telephone call from Pincus and Orso. Marando asserts that during this telephone call, Orso claimed, for the first time, that CSFB knew of the deal one and a half years earlier and that he was not entitled to a brokerage commission.
According to Schron, at the time of Marando's initial meeting with Pincus, defendant's principals and their broker had already been reaching out to the large New York investment banks for financing. Specifically, it is claimed by Schron that defendant had already had formal discussions with North Fork Bank, GMAC Mortgage Corp. (through another mortgage broker, Moshe Mendlowitz of GF Financial) and Debis Financial (also through Moshe Mendlowitz), as well as with Column Financial LLC (Column), a wholly-owned subsidiary of CSFB. Schron claims that his contact with CSFB occurred following his receipt of a computerized telephone message dated September 17, 2002 from Trauben, who had started working at CSFB on August 1, 2002, to advise him of his change of employment. This message stated: "Reg: He use[d] to work with apt real[ty] advisors and worked with you on 45 Broadway. Now he is working with CSFB."
Schron states that he spoke to Trauben about the refinancing of the Woolworth Building, shortly after receiving the September 17, 2002 telephone message from him and prior to October 18, 2002. According to Trauben, he did not learn of the Woolworth Building refinancing deal from Rubino or Marando, but learned about it directly through Schron. Orso claims that he learned of the Woolworth Building refinancing deal from his colleague, Trauben.
Marando asserts that on December 17, 2002, Pincus told him that he could not pay him a brokerage commission, and that CSFB was not acknowledging him as the broker on the Woolworth Building refinancing deal so he also would not acknowledge him as the broker. Column (which, as noted above, is a subsidiary of CSFB) made a $201,000,000 mortgage loan to defendant for the Woolworth Building, which closed on February 21, 2003. Plaintiff was not paid any brokerage commission.
On June 2, 2004, plaintiff brought this action against defendant, seeking to recover a brokerage commission of 1% ($2,010,000) for allegedly procuring for defendant the mortgage loan pertaining to the Woolworth Building in the aggregate principal amount of $2,010,000, plus interest from February 21, 2003, the date the loan closed. Plaintiff's complaint alleges causes of action for breach of contract, quantum meruit, and unjust enrichment.
Defendant, in support of its instant motion for summary judgment, argues that plaintiff cannot sustain its first cause of action for breach of an oral contract because there was no "meeting of the minds" between it and plaintiff with respect to the alleged brokerage agreement. Specifically, defendant asserts that no enforceable contract was formed because no agreement between it and plaintiff was reached as to the amount of the brokerage commission. Defendant contends that since the alleged oral brokerage agreement between it and plaintiff did not specify the amount of plaintiff's brokerage commission, it lacked an essential material term, is too indefinite for enforcement, and merely constituted an unenforceable agreement to agree.
Plaintiff, in opposition to defendant's motion, sharply disputes defendant's assertion that it did not agree upon the amount of the commission. Plaintiff claims that the amount of its commission was agreed upon and that it was to be 1% of the loan amount. Marando, in his sworn affidavit, attests that defendant agreed to pay plaintiff a 1% brokerage commission. Pincus, in his affidavit annexed to defendant's reply affirmation, denies this.
Defendant, to support its assertion that there was no agreement as to the amount of the brokerage commission, relies upon the fact that the proposed brokerage agreement, dated October 1, 2002, which Marando gave to Pincus and which provided for a 1% brokerage commission, was never signed. This fact, however, is not dispositive of the issue of whether a 1% brokerage commission had been agreed upon between Pincus and Marando. The amount of a brokerage commission may be agreed upon orally, and this is not a case where there was a written brokerage agreement, which specified its omission of the amount of the brokerage commission to be paid ( compare e.g. Parkway Group v Modell's Sporting Goods, 254 AD2d 338, 339). While Pincus claims that he did not read the brokerage agreement given to him by Marando in October 2002, it is undisputed that Pincus retained it, without objection (Pincus' Dep. Transcript at 81-85).
Defendant also argues that it is entitled to summary judgment on the basis that Marando himself never testified, at his deposition, that there was an agreement in place as to the amount of plaintiff's brokerage commission. This argument must be rejected. Marando actually testified that when he discussed plaintiffs brokerage commission with Pincus, Pincus told him that "the most we'll ever pay on any type of this loan is 1 percent" (Marando's Dep.Transcript at 27). Marando did not testify that Pincus did not agree to the amount of the commission, but only testified that Pincus told him that defendant could not execute the brokerage agreement at that time and that defendant would not execute it until he had a letter of intent or commitment from a lender ( Id. at 32).
Defendant also argues that Pincus' deposition testimony supports its contention that the rate of plaintiff's brokerage commission was never agreed upon. Pincus' deposition testimony, however, is, at best, equivocal. Pincus testified that there was a discussion with Marando of a brokerage fee in excess of one percent, and that he told Marando that "probably in a transaction of this size. . . it would not even be one percent" (Pincus' Dep. Transcript at 77-78). However, Pincus testified that he "didn't say it wouldn't be one percent" ( Id. at 77 ). Pincus further testified that he told Marando "you produce a loan, you will get paid," and that the rate of plaintiff's commission "w[ould] be negotiated at the time [he] produce[d] a loan" ( Id. at 85). Pincus also testified that he specifically told Marando that "at the time the deal was consummated, there would be a discussion and a negotiation as to what [plaintiff's brokerage] fees would be" ( Id. at 75). Additionally, Schron testified, at his deposition, that it was "very rare" for there ever to be a signed brokerage commission agreement with respect to defendant, and that he had only seen a signed brokerage commission involving any transaction "[m]aybe once or twice (Schron's Dep. Transcript at 74-75).
Defendant also asserts that a brokerage commission on a mortgage loan in the $200 million range is too high, and, therefore, shows that defendant would never have agreed to pay plaintiff this claimed commission. Defendant cites a treatise, which notes that commentators have reported that mortgage brokers charge "less than 1 percent for loans of more than $2 million" and that "a declining sliding scale is often used"(D. Barlow Burke, Jr., Law of Real Estate Brokers, Mortgage Brokerage § 17.01, at 17-4 [Aspen 2007]). This treatise, however, does not resolve what was actually negotiated, discussed, or agreed to between plaintiff and defendant in this case. According to the deposition testimony, Marando had requested and discussed with Pincus a higher brokerage commission of 1 ½ % or 2% (Marando's Dep. Transcript at 27; Pincus' Dep.Transcript at 75).
Defendant also points to Schron's deposition testimony that on other transactions that were done on the Woolworth Building, it paid brokerage fees of "maybe between a quarter and a third of a [percentage] point"(Schron's Dep. Transcript at 103). Schron, however, was not present at the meeting between Pincus and Marando and was not privy to their discussions ( Id. at 27).
Defendant also asserts that just two years after the subject refinancing transaction, defendant refinanced the Column mortgage with an even larger mortgage of $250 million and paid a mortgage broker, which it had used on that deal, a commission at the rate of .30% or $750,000. It states that this is the best evidence of the typical rate of commission that plaintiff would agree to pay mortgage brokers on a mortgage of $201,000,000. The amount of commission that has been paid to other brokers, at other times, however, is not determinative as to what had been agreed to between Marando and Pincus. In this regard, it is noted that Marando was hired shortly after the September 11, 2001 terrorist attacks on the World Trade Center, when many lenders were unwilling to make mega loans on a "trophy building" like the Woolworth Building in lower Manhattan (Marando's Dep. Transcript at 41-42).
Thus, the court finds that the conflicting deposition testimony and affidavits raise a triable issue of fact as well as questions of credibility as to this sharply contested issue of whether defendant agreed to pay plaintiff a brokerage commission in the amount of one percent ( see Halstead Brooklyn, LLC v 96-98 Baltic, LLC, 49 AD3d 602 , 603; Eileen A. Green Realty Corp.v Polidori, 224 AD2d 384, 384; Henri-Lynn Realty v Huang, 159 AD2d 486, 487). Summary judgment must be denied where triable issues of fact and questions of credibility are raised that require a trial ( see Glick Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441; Nicklas v Tedlen Realty Corp., 305 AD2d 385, 386; Roth v Barreto, 289 AD2d 557, 558; Cozza v Aetna Ins. Co., 243 AD2d 441, 442).
In any event, even assuming that the amount of plaintiff's brokerage commission was not agreed upon, a brokerage commission agreement is not rendered unenforceable if it fails to specify the rate at which the broker's commission would be computed where it is clear that the broker did not agree to work without compensation and the parties understood that the broker would be compensated at the prevailing, normal, and accepted rate ( see Abrams Realty Corp. v Elo, 279 AD2d 261, 261). Where the parties' brokerage agreement is silent as to the specific amount of the commission, a broker is entitled to a fair and reasonable commission ( see Kaplon-Belo Assoc. v Cheng, 258 AD2d 622, 622; 11 NY Jur 2d, Brokers § 144). Usually, a fair and reasonable commission is the customary rate in the community at the time when services are rendered ( see Harper Lawrence, Inc. v Intershoe, Inc., 270 AD2d 8, 12; Cassetta Frank, Inc. v P.G.C. Assoc., 264 AD2d 375, 377; Kaplon-Belo Assoc., 258 AD2d at 622).
Defendant attempts to distinguish the above cited cases by arguing that unlike those cases, this case does not involve an "exclusive" broker or the sale of residential property, but a $201,000,000 mortgage loan on commercial property, and, as such, the rate of commission cannot be determined by a customary rate in the community at the time when services are rendered. Such distinction is unavailing. A brokerage agreement need not be exclusive in order for the broker to be entitled to a commission; rather, the broker need only be the procuring cause of the completed transaction ( see Friedland Realty v Piazza, 273 AD2d 351, 351; Buck v Cimino, 243 AD2d 681, 684; Brown, Harris, Stevens v Rosenberg, 156 AD2d 249, 250).
Moreover, while defendant argues that there is no fixed or customary rate on which to base or determine plaintiff's commission, defendant, in attempting to argue that the 1% brokerage commission claimed by plaintiff was too high, itself points to other transactions as establishing the best evidence of the typical rate of commission it would agree to pay on this type of mortgage. Indeed, defendant, in its reply affirmation, states that commissions of .18% to .33% "is the customary' range" for loans of this magnitude, and specifically what [defendant] would agree to pay."
Thus, defendant has failed to demonstrate that no enforceable brokerage agreement was entered into by the parties as a matter of law so as to entitle it to summary judgment. Rather, the conflicting deposition testimony and affidavits raise material and triable issues of fact as to the agreement with respect to plaintiff's commission, which must be resolved at a trial of this action ( see Cassetta Frank, Inc., 264 AD2d at 376-377; Eileen A. Green Realty Corp., 224 AD2d at 384).
Defendant additionally argues that it is entitled to summary judgment because plaintiff cannot establish that it was the "procuring cause" of the refinancing transaction between it and Column. It is well settled that in order for a real estate broker to be entitled to receive a commission, it must establish not only that it is licensed and had an express or implied contract with the party charged with paying the commission, but also that it was the procuring cause of the transaction ( see Hentze-Dor Real Estate, Inc. v D'Allessio ,40 AD3d 813 , 815 [2007], quoting Stanzoni Realty Corp. v Landmark Props. of Suffolk, Ltd. , 19 AD3d 582 , 583; Friedland Realty, 273 AD2d at 351).
Marando claims that plaintiff was the procuring cause of Column's $201,000,000 mortgage loan to defendant. Marando states that he was the one who submitted the deal and placed it with CSFB/Column, through Rubino. Marando asserts that he generated interest and created an environment conducive to negotiations which proceeded successfully, and that he was the catalyst who started the chain of events that resulted in the making of Column's mortgage loan to defendant.
Defendant, on the other hand, contends that plaintiff was not the procuring cause of Column's mortgage loan to it. It asserts that Marando was not responsible for its introduction to Column and that CSFB knew about the refinancing deal of the Woolworth Building one and a half years earlier.
In support of its contention, defendant relies upon Orso and Trauben's deposition testimony that they did not learn about the deal from Rubino or Marando and that they never spoke to Rubino or Marando about the refinancing deal (Orso's Dep. Transcript at 30-32; Trauben's Dep. Transcript at 86-88). As noted above, Orso claimed that he learned about the Woolworth Building refinancing deal from Trauben, Trauben claimed that he learned about the refinancing deal directly from Schron, and Schron similarly maintained that he dealt directly with Trauben (Orso's Dep. Transcript at 30-31; Trauben's Dep. Transcript at 48-49, 66, 86-87; Schron's Dep. Transcript at 89). Schron testified, at his deposition, that he had a discussion with Trauben and Orso about the value of the Woolworth Building before October 18, 2002 (Schron's Dep. Transcript at 89), and Trauben testified, at his deposition, to have learned about the deal from Schron in conversation (Trauben's Dep. Transcript at 83).
Defendant relies upon the telephone message, dated September 17, 2002 (quoted above) from Trauben to Schron, as proof that Schron had spoken to Trauben about the refinancing of the Woolworth Building prior to Marando's contact with Rubino on October 16, 2002. This telephone message, however, only establishes that Trauben was a newly hired employee of CSFB and that he had called Schron to advise him of his change of employment. It also only references a deal from several years earlier concerning a different property, and it does not reference the Woolworth Building.
Plaintiff points out that Schron, at his deposition, could not specify the month or day that he returned Trauben's telephone call, and that Schron also could not recall any details of his alleged conversation with Trauben (Schron'sDep. Transcript at 60-61, 89-90, 96). Trauben, at his deposition, did not recall discussing the Woolworth Building with Schron during his conversation with Schron that followed his telephone message to him (Trauben's Dep. Transcript at 83). Trauben additionally did not recall the exact day that he knew about the Woolworth Building refinancing deal or started working on it (Trauben's Dep.Transcript at 48).
Plaintiff points to the timing of the scheduling of the October 28, 2002 meeting between CSFB and defendant, which closely followed his contact with CSFB on October 16, 2002. Plaintiff also points out that it was not until the end of 2002 that Cammeby's provided Column with a good faith deposit and application fee (Miller's Dep. Transcript at 27). Also, it was either at the very end of 2002 or the beginning of 2003 that Cammeby's responded to Column's due diligence questions ( Id. at 32-33).
Defendant further argues that the extent of plaintiff's activity and efforts in connection with his claim was his contact with Rubino on October 16, 2002, and that Rubino testified, at his deposition, that after he told Orso about the deal, Orso indicated that he knew defendant's principals and had talked to them in the past about this deal (Rubino's Dep. Transcriptat 56). However, Rubino also testified that when he passed the information that Marando had given to him about the refinancing of the Woolworth Building to Orso, he did not know if it was the first time that Orso had ever heard of it ( Id. at 87). Rubino could not recall whether Orso said he knew defendant was looking for refinancing or not, but only remembered Orso stating that he knew defendant ( Id. at 87-88). Additionally, prior to Marando's initiation of contact with Rubino, there is no evidence that the Woolworth Building refinancing deal was in the "pipeline," which was where potential deals at CSFB were routinely entered so that everyone at CSFB would become aware that a particular property or borrower was being considered for a loan ( Id. at 35-36, 38, 58). As previously noted, "[a] court may not weigh [or determine] the credibility of witnesses on a motion for summary judgment" but, rather, issues of credibility must be determined by the trier of facts ( Conciatori v Port Auth. of NY N.J. , 46 AD3d 501, 503; see also Donato v ELRAC, Inc., 18 AD3d 696, 698).
Defendant further contends that there was no "direct and proximate link" between the alleged introduction of it to Column by Marando ( see Greene v Hellman, 51 NY2d 197, 206). It asserts that Marando did not organize or attend any meetings between defendant and Column, have conversations with Orso, Trauben, or anyone else at Column who worked directly on the Woolworth Building refinancing deal, or provide any information or documents other than that contained in his October 16, 2002 e-mail to Rubino.
While Rubino testified, at his deposition, that his extent of involvement in connection with the Woolworth Building refinancing deal was his contact with Marando, "receiving the numbers [from him], passing them [on] to Orso's group [and] fielding [tele]phone calls from Marando (Rubino's Dep. Transcript at 98), Marando testified, at his deposition, that he negotiated the terms of the transaction with Rubino, and that two days after his initial contact with Rubino, Rubino told him that "he was going to try to get the loan for [him]" (Marando's Dep. Transcript at 53, 55-56, 58-59). Furthermore, Marando, in his affidavit, sets forth how he provided Rubino with the necessary information on the refinancing of the Woolworth Building, containing many favorable details relating to its net operations income, cash flow, and value, and how Rubino passed this information along to Orso's group.
Where it is shown that a broker in an action to receive a mortgage broker's commission "not only introduced [the borrower] to [the lender] but . . . also compiled a binder with sensitive financial information about [the borrower] which it submitted to prospective lenders, including [the lender that made the loan], in support of [the borrower's] application for a loan," sufficient evidence is presented to defeat the borrower's motion for summary judgment dismissing the broker's action to recover a commission ( Multiloan Mtge. Co. v Asian Gardens, 303 AD2d 658, 660). "[I]n order to qualify for a commission, a broker need not have been involved in the ensuing negotiations or the completion of the sale" ( Hentze-Dor Real Estate, Inc., 40 AD3d at 816). Rather, it is enough that the broker "created an amicable atmosphere in which negotiations proceeded or that [it] generated a chain of circumstances that proximately led to the sale" ( id., quoting Dagar Group Ltd. v Hannaford Bros. Co., 295 AD2d 554, 555; see also Country Harbor Realty Inc. v Sullivan , 23 AD3d 606 , 606; Friedland Realty, 273 AD2d at 351; Cappuccilli v Krupp Equity Ltd. Partnership, 269 AD2d 822, 823; Brown, Harris, Stevens, 156 AD2d at 250).
Thus, even if the broker does not negotiate or is not present at the sale which eventually results from the direct negotiation between the parties, questions of fact are raised as to the broker's entitlement to a commission ( see Cappuccilli, 269 AD2d at 823; Brown, Harris, Stevens, 156 AD2d at 250). The cases relied upon by defendant are readily distinguishable by the fact that the courts in those cases reached the determination that the broker was not the procuring cause either after the trial of the action or where the broker simply called attention to the property, but made no effort whatsoever ( see Greene, 51 NY2d at 201; Sibbald v Bethlehem Iron Co., 83 NY 378, 381; Getreu v Lebowitz, 162 AD2d 585, 585-586; Kenneth D. Laub Co. v 101 Park Ave. Assoc., 162 AD2d 294, 295-296; Manning v Briar Hall N., 151 AD2d 650, 650-651; Byrne, Bowman Forshay v 488 Madison Ave., 11 Misc 2d 587, 588, affd 286 App Div 826). Therefore, inasmuch as plaintiff has raised a material and triable issue of fact as to whether it was the procuring cause of the mortgage refinancing of the Woolworth Building by Column, summary judgment dismissing plaintiff's first cause of action for breach of contract must be denied ( see Multiloan Mtge. Co., 303 AD2d at 660; Cappuccilli, 269 AD2d at 823; Brown, Harris, Stevens, 156 AD2d at 250).
Defendant further argues that plaintiff's second cause of action for quantum meruit and plaintiff's third cause of action for unjust enrichment should be dismissed. However, where the existence of a brokerage contract is in dispute, the broker may proceed on the theories of both breach of contract and quantum meruit/unjust enrichment ( see Breslin Realty Dev. Corp. v 112 Leaseholds, 270 AD2d 299, 299; Curtis Props. Corp. v Greif Cos., 236 AD2d 237, 239).
In the absence of a contract, a broker is entitled to receive a commission in a reasonable amount for bringing together the parties to a transaction since "[e]quity requires that [a broker] recover for its services in quantum meruit in order to avoid the unjust enrichment of [the] defendant at its expense" ( Curtis Props. Corp. v Greif Cos., 212 AD2d 259, 266; see also Curtis Props Corp., 236 AD2d at 239). A party who contacts a broker to procure its services cannot assume that the broker works gratuitously ( see Gronich Co. v 649 Broadway Equities Co., 169 AD2d 600, 602). To sustain a claim for quantum meruit or unjust enrichment, the defendant must receive a benefit from the activities of the plaintiff and the services must be performed at the request of the defendant ( see Stephen Pevner, Inc. v Ensler, 309 AD2d 722, 723; Joan Hansen Co. v Everlast World's Boxing Headquarters, 296 AD2d103, 108 [2008]; Liberty Marble v Elite Stone Setting Corp., 248 AD2d 302, 304; Heller v Kurz, 228 AD2d 263, 264; Kagan v K-Tel Entertainment, 172 AD2d 375, 376).
Defendant argues that plaintiff did not confer any benefit upon it. It bases this argument on its assertion that plaintiff was not the "procuring cause" of the mortgage loan which it obtained from Column. However, since (as discussed above) the issue of whether plaintiff was the procuring cause of the mortgage loan, and, thus, whether defendant was unjustly enriched by plaintiff's services, presents an issue of fact, to be resolved at trial, defendant is not entitled to dismissal of these claims on this basis.
Defendant further argues that the brokerage services were not performed by plaintiff at its behest. Defendant claims that it did not request that plaintiff reach out to Column since it was a "Wall Street" lender. Specifically, defendant claims that plaintiff was strictly prohibited from contacting any traditional "Wall Street" lender, such as Column, and was limited solely to reaching out to life insurance companies for refinancing. It relies upon Pincus' deposition testimony that he told Marando to go to insurance companies to get a loan since Marando had professed to have had expertise in, and relationships with these companies (Pincus' Dep. Transcript at 72, 82-83). This deposition testimony, however, is at odds with Marando's deposition testimony that no such restrictions were placed on his authority with respect to contacting "Wall Street" lenders for the needed mortgage refinancing (Marando's Dep. Transcript at 25-26). Thus, since the issue of whether the work performed by plaintiff was authorized by defendant presents disputed issues of fact which cannot be resolved on this motion, defendant is not entitled to summary judgment dismissing plaintiff's quantum meruit and unjust enrichment claims ( see Dagar Group Ltd., 295 AD2d at 555; Bielat v Montrose, 272 AD2d 251, 251; Hsu v Chang, 199 AD2d 309, 310).
Accordingly, defendant's motion for summary judgment dismissing plaintiff's complaint as against it, is denied.
This constitutes the decision and order of the court.