Complaint sufficiently pled that real estate broker was improperly denied broker fee for producing a
Defendants’ motion to dismiss (for failure to state a claim) is denied. Plaintiff was a licensed real estate broker who alleged that he had procured a ready, willing and able buyer for Defendant’s house in Fire Island but the Defendants backed out of the sale. “Defendants agreed to pay the plaintiffs a brokerage commission in the amount of 5 percent of the price of the property…the defendants accepted the offer; that the plaintiffs prepared a contract for the sale of the property which [was] promptly executed and returned to the defendants; but that the defendants, without cause or just reason, failed to execute the contract.” Plaintiffs also allege that a second buyer was procured but Defendants, again, backed out from the sale.
Law: On a motion to dismiss a complaint under CPLR 3211 (a) (7), the test is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v. Leader, 74 AD3d 1180, 904 NYS2d 153 ). A court must determine whether, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every favorable inference, those facts fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 614 NYS2d 972 ), although bare legal conclusions and factual claims flatly contradicted by the record are not entitled to any such consideration (Doria v. Masucci, 230 AD2d 764, 646 NYS2d 363 , lv denied 89 NY2d 811, 657 NYS2d 404 ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170, 175 ).
Justice Joseph C. Pastoressa held:
A real estate broker is generally entitled to recover a commission upon establishing that he or she (i) was duly licensed (Real Property Law §442-d), (ii) had a contract, express or implied, with the party to be charged with paying the commission” (Julien J. Studley, Inc. v. New York News, 70 NY2d 628, 518 NYS2d 779 ; Re/Max Homes & Estates v. Leist, 308 AD2d 439, 764 NYS2d 107 ), and (iii) procured a buyer ready, willing, and able to purchase on the seller's terms (Rusciano Realty Servs. v. Griffler, 62 NY2d 696, 476 NYS2d 526 ; Sutton & Edwards, Inc. v. 68-60 Austin St. Realty Corp., 70 AD3d 810, 895 NYS2d 174 ).
Conclusion: Absent an agreement to the contrary, the broker's right to a commission is not contingent upon performance of the underlying real estate contract, receipt by the seller of the sale price, transfer of title, or even the formal execution of a legally enforceable sales contract (Coldwell Banker Vil. Green Realty v. Pillsworth, 32 AD3d 568, 818 NYS2d 868 ; accord Mecox Realty Corp. v. Rose, 202 AD2d 404, 608 NYS2d 526 ). The Court held that the Plaintiff’s complaint is “sufficiently detailed to give adequate notice of the transactions and occurrences constituting the alleged wrong”
The Case is Lighthouse Vacation Props. v. Kessler, 14-824, NYLJ 1202669507707 (Sup., Suff. Sept. 3, 2014). Read more: http://www.newyorklawjournal.com/id=1202669507707/Lighthouse-Vacation-Properties-and-Ali-Beqaj-Plaintiffs-v-Jeffrey-Kessler-and-Denise-Brodey-Defendants-14824#ixzz3DEmL1Mdq
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