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PHILIP KENNEDY v. HUNTINGTON HARTFORD ET AL. (12/12/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


December 12, 1968

PHILIP KENNEDY, PLAINTIFF, AND HENRY NEULIST, RESPONDENT,
v.
HUNTINGTON HARTFORD ET AL., APPELLANTS, ET AL., DEFENDANTS. HUNTINGTON HARTFORD, THIRD-PARTY PLAINTIFF, V. LANDRICH INVESTMENT COMPANY LIMITED, THIRD-PARTY DEFENDANT

Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and Bastow, JJ.

Plaintiff, a licensed real estate broker, is seeking to recover what he terms a finder's fee for services he claims to have rendered in connection with the sale of "Paradise Island", located in Nassau, the Bahamas. We hold that the transaction which forms the basis of this lawsuit involves the sale of real estate, since "real estate is the principal element involved, and is the dominant feature of the transaction". (Sorice v. Du Bois, 25 A.D.2d 521.) Not only has plaintiff admittedly arranged to split his commissions with other individuals who acted as brokers, although not licensed to do so, but he has also agreed in writing to share the proceeds of this lawsuit. Because of this, and because the services performed by plaintiff and by his associates, with whom he was to share his commissions and the proceeds of this action, are those of a broker, the transaction falls squarely within the scope of article 12-A of the Real Property Law. The public policy embodied in that article bars plaintiff from recovery, either in contract or in tort, for the services in question. In any event, were we not dismissing the complaint for the reasons above stated, we would do so on the ground that plaintiff's claim, factually, lacks merit.

Disposition

Orders, entered on July 25, 1968, denying defendants-appellants' motions to dismiss the complaint herein and for summary judgment, unanimously reversed, on the law and motions for summary judgment granted, with $50 costs and disbursements to appellants.

19681212

© 1998 VersusLaw Inc.



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