Opinion
0600689/2007.
September 3, 2008.
Decision/Order
Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s): Papers — Defendant 323, Inc. Mot/Dismiss Numbered Papers — Defendant Aviv X-Mot/SJ Numbered
Def 323 Inc. n/m [dismiss], (MEL) affirm . . . . . . . . . . . 1 Def Aviv affirm in opp (JNL), exhs . . . .. . . . . . . . . . 2 Pltf's SHF affirm in opp. . . . . . . .. . . .. . . . . . . . 3 Def Dumann, Du Faust affirm in opp (PPF) . . . . . . . . . . 4 Def 323 Inc. reply affirm (MEL) . . . . . . . . . . . . . . . 5 Def Aviv's n/m [sj], JNL affirm, EF affid, exhs . . . . . . . 1 Def Dumann, Du Faust affirm in opp (PPF) . . . . . . . . . 2 Def 323 Inc. affirm in opp. . . .. . . .. . . .. . . . . . . . 3 Def Aviv's reply affirm (JNL). . . .. . . .. . . . . . . . . . 3 Upon the foregoing papers, the decision and order of the court is as follows:This is an action by plaintiff, a duly licensed real estate broker, for the collection of broker's commissions for the rental of real property located at 524 West 36th Street, New York, New York (the "premises"). Defendant 323 Inc. ("323") now moves to dismiss the verified complaint against it. Defendant Aviv Midtown Realty Corp. ("Aviv") opposes the motion to the extent that 323 seeks dismissal of Aviv's cross-claim against 323. Plaintiff and defendants Dumann Faust Realty LLC d/b/a Dumann Realty ("Dumann"), Richard Du and Frederick J. Faust (collectively herein referred to as the "Dumann Defendants") oppose the motion in its entirety. Aviv owns the premises, Dumann is a duly licensed real estate broker and Du and Faust are real estate brokers who work at Dumann.
At the outset, although 323 has not expressly stated whether it is moving pursuant to CPLR § 3211 or 3212, it appears from the record that this motion is made pursuant to the former, based on the arguments raised that plaintiff's verified complaint fails to meet pleading requirements set forth in CPLR 3016 (b). Therefore, the court will treat 323's motion as one pursuant to CPLR § 3211, even though issue has been joined.
Aviv cross-moves for summary judgment dismissing the verified complaint against it and dismissing the cross-claims asserted by the Dumann Defendants. The Dumann Defendants oppose the cross-motion, but neither plaintiff nor 323 have taken a position with respect thereto.
Since issue has not been joined, and the note of issue has not yet been filed, summary judgment relief is available. CPLR § 3212. Brill v. City of New York, 2 N.Y.3d 648 (2004).
The following facts are not in dispute. In or about October 2006, Aviv retained Dumann to obtain a tenant for the premises. On October 18, 2006, Aviv entered into a Leasing Agency Agreement with Dumann wherein Dumann was to be the exclusive leasing agent for the premises.
During the month of January 2007, Dumann contacted Aviv and indicated that 323 was interested in leasing the premises. On January 26, 2007, Aviv and Dumann executed a commission agreement for the transaction between Aviv and 323. The commission agreement required Aviv to pay Dumann for the total earned commission upon the execution of a lease between Aviv and 323. Thereafter, a lease was executed between Aviv and 323. 323 made rental payments pursuant to the lease until June 1, 2007, at which time the premises were condemned and the City of New York took possession thereof. Aviv made commission payments to Dumann totaling $33,000 and claims that since the premises were condemned, its commission payment obligation to Dumann has terminated.
The remaining facts are largely disputed. Plaintiff claims that it entered into an agreement with Dumann whereby it would "aid and assist in procuring a tenant for the premises" and "would divide the real estate brokers' leasing commissions payable by the owner of the premises, equally between them as co-brokers" (the "agreement"). Plaintiff maintains that 323 was its customer, and that plaintiff submitted an offer for the rental of the entire premises, consisting of 6,000 square feet, at $19,000 per month for ten years, to Dumann on January 16, 2007. Plaintiff states that Dumann thereafter informed it that Aviv would only rent 3,800 square feet of the premises to 323 at $15,000 monthly, and on January 22, 2007, 323 submitted an offer for 3,800 square feet of the premises upon those same terms. On January 26, 2007, Dumann advised plaintiff that Aviv was no longer interested in renting 3,800 square feet of the premises, but may rent the entire premises at $25,000 monthly. On January 29, 2007, plaintiff states that Steve Kokiasmenos, a principal of 323, advised it that "another broker' was working on obtaining a lease for the premises on behalf of his father, George Kokiasmenos, another principal of 323.
Plaintiff has asserted the following causes of action in the verified complaint: [1] breach of the agreement against Dumann; [2] breach of implied covenant of good faith and fair dealing against Dumann; [3] breach of 19 NYCRR § 175.21 against Du and Faust; [4] breach of contract against Aviv; [5] quantum meruit against Dumann and Aviv; and [6] tortious interference with contract against 323. Plaintiff claims that its share of the leasing commission is $57,931.92.
Aviv's answer contains general denials, affirmative defenses and three cross-claims, to wit: [1] contribution against the Dumann Defendants; [2] indemnification against 323; [3] breach of contract against the Dumann Defendants; and [4] breach of contract against 323. The Dumann Defendants asserted cross-claims against Aviv and 323 for indemnification and asserted counterclaims against plaintiff for malicious prosecution and tortious interference with contract/business. 323 has also answered the verified complaint.
Discussion The motion to dismiss
The court will first address the motion to dismiss. 323 argues that plaintiff has failed to plead the cause of action for tortious interference with contract with the requisite specificity. CPLR § 3211 (a) (7); CPLR 3016.
On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction ( see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87). The court accepts the facts as alleged by plaintiff as true, affording them the benefit of every possible favorable inference (EBC I, Inc v Goldman, Sachs Co., 5 NY3d 11, 19 ; Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414; P.T. Bank Central Asia v ABN AMRO Bank NV, 301 AD2d 373, 375-6 [1st Dept 2003]), unless clearly contradicted by evidence submitted in connection with the motion (see Zanett Lombardier, Ltd v Maslow, 29 AD3d 495 [1st Dept 2006]). The court's main inquiry on a motion to dismiss is whether the proponent of the pleading has a cause of action, not whether he has stated one (Leon, supra., quoting Guggenheimer v Ginsburg, 43 NY2d 268).
The essential elements of a cause of action for tortious interference with a pre-existing contract are: (1) the existence of a valid contract between plaintiff and a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional procurement of the third-party's breach of that contract, without justification, and (4) damages (White Plains Coat Apron Co., Inc. v. Cintas Corp., 8 NY3d 422).
Plaintiff has alleged that 323 knew of plaintiff's agreement with Dumann, but nonetheless "schemed and conspired" with Dumann to deprive plaintiff of the commissions due and owing to plaintiff. These claims sufficiently state a cause of action for tortious interference with contract because, at this stage (see Furia, supra), plaintiff's allegations are afforded every favorable inference. 323's argument that the sixth cause of action should be dismissed because plaintiff has failed to allege its claims with particularity is unavailing. Although plaintiff has asserted that 323 acted fraudulently, plaintiff's sixth cause of action is for tortious interference with a pre-existing contract and fraud is not an element of this cause of action. Therefore, CPLR 3016 (b) is inapplicable. Accordingly, 323's motion to dismiss is denied in its entirety and the court need not address defendants' remaining arguments in opposition thereto.
The cross-motion for summary judgment
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR § 3212; Winegrad v. NYU Medical Center, 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Only if it meets this burden, will the burden then shift to the party opposing summary judgment who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra. If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986);Ayotte v. Gervasio, 81 N.Y.2d 1062 (1993).
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1977). The court's function on these motions is limited to "issue finding," not "issue determination." Sillman v. Twentieth Century Fox Film, 3 N.Y.2d 395 (1957).
Aviv argues that it is entitled to summary judgment dismissing plaintiff's claims against it because there was no agreement between Aviv and plaintiff, express or implied, and plaintiff's quantum meruit claim must fail because plaintiff cannot show that Aviv has been unjustly enriched to plaintiff's detriment. Neither plaintiff nor 323 have opposed the cross-motion, but the Dumann Defendants argue that summary judgment should be denied because the relief requested will cause prejudice and they have the right to adjudicate their cross-claim against Aviv for contribution in the event that they are held liable to plaintiff.
At the outset, the court rejects the Dumann Defendants' argument that summary judgment dismissing the verified complaint should be denied because they will suffer prejudice if the verified complaint is dismissed against Aviv. The Dumann Defendants' cross-claim against Aviv, although asserted in the context of this action, is separate and apart from plaintiff's claims. The Dumann Defendants have not demonstrated how the relief sought by Aviv will result in prejudice because dismissing the verified complaint will not deny the Dumann Defendants the opportunity to litigate their cross-claim on its merits in this action. Therefore, the Dumann Defendants' argument is unavailing.
The court concludes that plaintiff's direct claims against Aviv fail for the reasons that follow. In order to state a cause of action for breach of contract against Aviv, there must be a valid and enforceable agreement, due performance by plaintiff, and a failure of performance by Aviv, resulting in damages (see Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Aviv denies that it had any agreement with plaintiff. Plaintiff has not come forward with any facts to establish the existence of a valid and enforceable agreement between plaintiff and Aviv. In the absence of a valid agreement, there can be no claim for breach of contract. Accordingly the fourth cause of action is hereby severed and dismissed.
The fifth cause of action for quantum meruit also fails. Quantum meruit requires that services were performed for Aviv resulting in Aviv's unjust enrichment (Prestige Caterers v. Kaufman, 290 AD2d 295 [1st Dept 2002]). Plaintiff must also establish that the services were performed at the request or behest of the Aviv (id). Aviv denies that plaintiff performed any services for it. Its sole broker was Dumann, to whom it was solely obligated. Plaintiff has not showed it performed any services at the request of Aviv. Moreover, since Aviv is in all events required to pay Dumann the entire commission due, plaintiff cannot show any inequity in Aviv's failure to pay commissions to it directly.
Aviv also argues that it is entitled to summary judgment dismissing the Dumann Defendants' cross-claim against it. The Dumann Defendants have asserted a claim for indemnification against Aviv. Their sole argument in opposition to Aviv's cross-motion is that "Dumann is liable for any and all commissions owed in this case." However, there is no dispute that Aviv has paid all commissions due under the Leasing Agency Agreement, and therefore, Aviv has established prima facie entitlement to summary judgment dismissing the Dumann Defendants' cross-claim.
Accordingly, Aviv's cross-motion is granted in its entirety, and the fourth and fifth causes of action asserted in the verified complaint are hereby severed and dismissed and the Dumann Defendants' cross-claim against Aviv is hereby severed and dismissed. The court hereby sets a status conference in this action on October 2, 2008 at 9:30 a.m. In addition to all other issues, the court will require the parties to show why this action should not be transferred to the Civil Court of the City of New York, since it appears on this motion that the damages sought are within the jurisdictional limit of the Civil Court. CPLR § 325 (d).
Conclusion
In accordance herewith, it is hereby:
ORDERED that 323's motion is denied in its entirety; and it is further
ORDERED that Aviv's cross-motion is granted in its entirety; and it is further ORDERED that the fourth and fifth causes of action asserted in the verified complaint are hereby severed and dismissed; and it is further
ORDERED that the Dumann Defendants' cross-claim against Aviv for indemnification is hereby severed and dismissed;
ORDERED that all parties in this action shall appear for a status conference on October 2, 2008 at 9:30 a.m. at Part 10.
The clerk is hereby directed to enter judgment in accordance herewith.
Any requested relief which has not been addressed herein has been considered and is hereby expressly denied.
This shall constitute the decision and order of the Court.