Opinion
April 25, 1991
Appeal from the Supreme Court, New York County (Diane A. Lebedeff, J.).
Plaintiff moved for summary judgment in lieu of complaint under CPLR 3213 to recover under a promissory note issued as payment for services purportedly rendered by plaintiff in connection with defendants' purchase of a building located in Utica, New York. Defendants cross-moved for summary judgment upon the ground that plaintiff's recovery is barred pursuant to sections 442-a Real Prop. and 442-d Real Prop. of the Real Property Law.
Plaintiff is a licensed real estate salesperson, and therefore, may not "receive or demand compensation of any kind from any person, other than a duly licensed real estate broker with whom he [or she] associated, for any service rendered * * * in the appraising, buying, selling, exchanging, leasing, renting or negotiating of a loan upon any real estate" (Real Property Law § 442-a). The parties do not dispute that the nature of the underlying transaction with respect to which plaintiff rendered services was the purchase by defendants of a commercial building. That this is so is expressed clearly and unambiguously in the "consulting agreement" upon which plaintiff relies. The fact that plaintiff chose to label her activities in connection with such sale as "consulting" is not determinative. (See, Sorice v DuBois, 25 A.D.2d 521; Enfeld v. Hemmerdinger Estate Corp., 34 A.D.2d 980, 981, affd 28 N.Y.2d 606.) In opposition to defendants' cross-motion for summary judgment, plaintiff was required to reveal and lay bare her proofs (see, Corcoran Group v. Morris, 107 A.D.2d 622, affd 64 N.Y.2d 1034). Plaintiff has not even alleged, let alone demonstrated that the underlying transaction was actually more than a straightforward purchase of real property (cf., Myer v. Jova Brick Works, 38 A.D.2d 615), or that the services purportedly rendered by her were for any purpose other than to facilitate defendants' purchase (cf., Gerstein v 532 Broad Hollow Rd. Co., 75 A.D.2d 292). Accordingly, plaintiff is barred from recovery, and defendants' cross-motion should have been granted.
We find no abuse of discretion, however, in the Court's determination to sever defendants' counter-claims.
Concur — Murphy, P.J., Wallach, Asch, Kassal and Smith, JJ.