Opinion
8456 8457 Index 152499/17
02-21-2019
John TOZZI, et al., Plaintiffs–Appellants, v. Carola MACK, et al., Defendants–Respondents.
Franzino & Scher LLC, New York (George F. Du Pont of counsel), for appellants. Parker Pohl LLP, New York (M. Todd Parker of counsel), for Carola Mack, respondent. Capuder Fazio Giacoia LLP, New York (Joseph D. Giacoia of counsel), for DJK Residential, LLC, respondent.
Franzino & Scher LLC, New York (George F. Du Pont of counsel), for appellants.
Parker Pohl LLP, New York (M. Todd Parker of counsel), for Carola Mack, respondent.
Capuder Fazio Giacoia LLP, New York (Joseph D. Giacoia of counsel), for DJK Residential, LLC, respondent.
Renwick, J.P., Tom, Singh, Moulton, JJ.
The option agreement, the correction rider, and the emails constitute documentary evidence which utterly refutes plaintiffs' factual allegations and conclusively establishes a defense as a matter of law (see Amsterdam Hospitality Group, LLC v. Marshall–Alan Assoc., Inc., 120 A.D.3d 431, 432–433, 992 N.Y.S.2d 2 [1st Dept. 2014] ; Schutty v. Speiser Krause P.C., 86 A.D.3d 484, 484–485, 928 N.Y.S.2d 4 [1st Dept. 2011] ). Tozzi's claim that "it was his belief" that Mack presented him with only the signature pages of the option agreement, and that he did not see the entire agreement, is insufficient as a basis upon which to deny these motions, as "[a] party who signs a document without any valid excuse for having failed to read it is ‘conclusively bound’ by its terms" ( Sorenson v. Bridge Capital Corp., 52 A.D.3d 265, 266, 861 N.Y.S.2d 280 [1st Dept. 2008], lv dismissed 12 N.Y.3d 748, 876 N.Y.S.2d 699, 904 N.E.2d 836 [2009] ). There is no evidence raising triable issues of fact as to whether plaintiff was given the entire agreement (see Martin v. Citibank, N.A., 64 A.D.3d 477, 477–478, 883 N.Y.S.2d 483 [1st Dept. 2009] ).
Contrary to Tozzi's contention that the motion court erred in dismissing the case based on the contracts of sale because the court incorrectly ignored Real Property Law (RPL) § 443, "[p]ursuant to Real Property Law § 441–c(1), respondent may revoke or suspend the license of a real estate broker or salesperson, reprimand the real estate broker or salesperson, or impose a fine" ( Matter of Re/Max All–Pro Realty v. New York State Dept. of State, Div. of Licensing Servs., 292 A.D.2d 831, 831–832, 739 N.Y.S.2d 321 [4th Dept. 2002], lv denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). In any event, plaintiffs complied with the disclosure required by RPL 443, albeit somewhat untimely, and the documentary evidence constituted written admissions that defendants were entitled to commissions.
The remaining causes of action for unjust enrichment and breach of fiduciary duty were correctly dismissed as duplicative of the first cause of action for invalid commission "since both claims arise from the same facts and seek the identical damages" ( Netologic, Inc. v. Goldman Sachs Group, Inc., 110 A.D.3d 433, 433–434, 972 N.Y.S.2d 33 [1st Dept. 2013] ). There was also no damages or unjust enrichment, as plaintiffs were not licensed New York real estate brokers and were not entitled to commissions.
Mack's request for imposition of sanctions is denied.