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Hall Homes Realty, Inc v. Republic of Senegal

March 30, 2012

HALL HOMES REALTY, INC., PLAINTIFF,
v.
REPUBLIC OF SENEGAL, DEFENDANT.



The opinion of the court was delivered by: Levy, United States Magistrate Judge:

MEMORANDUM AND ORDER

Plaintiff Hall Homes Realty, Inc. ("plaintiff" or "Hall Homes") and defendant Republic of Senegal ("defendant" or "Senegal") each move for summary judgment under Fed. R. Civ. P. 56. The cross-motions are before me on consent of the parties pursuant to 28 U.S.C. § 636. I heard oral argument on October 18, 2011. (See Transcript of Oral Argument, dated Oct. 18, 2011 ("Tr.").) For the reasons stated below, defendant's motion is granted and plaintiff's is denied.

BACKGROUND AND FACTS

Plaintiff commenced this breach of contract*fn1 action against Senegal and Hotel E. 44th LLC*fn2 ("Hotel") in New York Supreme Court, Richmond County, in January 2010. On February 16, 2010, Senegal removed the action to this court. The action arises out of Senegal's November 2009 purchase of commercial real property located at 227-235 East 44th Street in New York, New York (the "Property") from Hotel. Plaintiff, a real estate agency, claims it acted as defendant's broker and helped to facilitate the purchase of the Property. (See generally Complaint, dated Jan. 6, 2010 ("Compl.").) Defendant denies that there was a contract between Senegal and plaintiff, but contends that even if there was such an agreement, it was contingent upon a condition that was never met. Both parties served and filed a Statement of Material Facts Not in Genuine Dispute, in compliance with Local Civil Rule 56.1(a).*fn3 The basic undisputed facts are as follows:

Beginning in or around 2006, Pape M. Diedhiou ("Pape"), an authorized representative of Senegal, was tasked with locating and purchasing a commercial property in Manhattan for the future location of Senegal's Permanent Mission to the United Nations. (Defendant's Statement of Undisputed Facts, dated June 23, 2011 ("Def.'s Rule 56.1"), ¶ 1.) In or about November 2006, Senegal learned of a property located at 227-229 East 44th St; on November 3, 2006 it made a $17,000,000 offer for that property through an attorney, Gary Rosen. (Id. ¶ 2.) Plaintiff had no involvement in the offer, which was ultimately rejected. (Id. ¶ 5.)

Shortly after defendant made its offer to purchase 227-229 East 44th St, it began working with Mamadou L. Diedhiou ("Mamadou"), Pape's distant cousin, to locate a property for the Mission. (Id. ¶ 7.) In 2007, Mamadou began working for Hall Homes and brought Senegal in as a client. (Id. ¶ 8.) In November 2007, Mamadou provided Pape with a "Dual Agency with Designated Sales Associates" disclosure form dated November 3, 2007. (Id. ¶ 13.) On or around November 13, 2007, Hall Homes, on behalf of Senegal, made an offer to purchase a property located on East 50th St. (Id. ¶ 12.) The deal was not consummated. (Id. ¶ 15.)

At some point in early 2008, the parties learned that Hotel, the owner of 227-229 East 44th St., had acquired 235 E 44th St., the adjoining parcel.*fn4 In May 2008, Pape and Daniel Hall ("Hall"), plaintiff's principal, exchanged a series of emails regarding the Property. (See id. ¶¶ 19--21.) On May 29, 2008, Pape and Mamadou signed a Brokerage Agreement*fn5 (the "May 29 Brokerage Agreement") that related to the possible purchase of the Property for $24 million.*fn6

(See Brokerage Agreement, dated May 29, 2008, annexed as Exs. 9 & 10 to the Declaration of Pape M. Diedhiou, dated June 13, 2011 ("Pape Decl.").)

Sometime in late May or early June 2008, Pape authorized plaintiff to convey a $24 million offer to Hotel for the Property, verbally and in writing. (Plaintiff's Statement of Undisputed Facts, dated June 29, 2011 ("Pl.'s Rule 56.1"), ¶ 19.) Hotel rejected this initial offer. (Deposition of Daniel Hall, dated Mar. 23, 2011 ("Hall Dep."), annexed as Ex. C. to the Declaration of Richard A. Rosenzweig, Esq., dated May 3, 2011 ("Rosenzweig Decl."), at 28.) On June 22, 2008, Hall Homes prepared a second brokerage agreement in connection with the Property (the "June 22 Brokerage Agreement"). (Def.'s Rule 56.1 ¶ 33.) The June 22 Brokerage Agreement, which sets the broker's fee at three percent of the selling price "TBA," lists Hall Homes as the "Broker" and "Arjuna Sunderam" as "the Seller."*fn7 (See Pape Decl., Exs. 12, 13.) However, it is signed by Pape rather than Sunderam, who was Hotel's agent. (See id., Exs. 12, 13.) It is also signed by Hall. (See id., Exs. 12, 13.) At the time that Hall Homes prepared and signed the June 22 Brokerage Agreement, it understood that Senegal was entering into a contract with Hotel for the acquisition of the Property. (Def.'s Rule 56.1 ¶ 37.)

Pursuant to a purchase and sale agreement dated June 26, 2008 (the "2008 PSA"), Senegal and Hotel entered into an agreement for the sale of the Property. (Id. ¶ 38.) On August 26, 2008, Hotel terminated its contract with Senegal due to Senegal's failure to pay the purchase price balance by the closing date. (See Pape Decl., Ex. 17.) After Hotel terminated the 2008 PSA, Hall Homes had "only 'limited' verbal communications with Pape in September and October of 2008 and no further written communications." (Def.'s Rule 56.1 ¶ 55.) Senegal eventually acquired the Property pursuant to a sales and purchase agreement dated August 8, 2009 (the "2009 PSA") for $24,500,000. (Id. ¶ 57.)

The parties now cross-move for summary judgment. Plaintiff argues that it is entitled to summary judgment because the evidence shows it had a contract with defendant and it helped initiate the sale of the Property. On the other hand, defendant argues that it is entitled to summary judgment because the record demonstrates that Hotel (the seller), not Senegal (the buyer), was the only party that would have paid the commission had one been due to Hall Homes. Moreover, defendant argues that even assuming there was an agreement between plaintiff and defendant, that agreement conditioned any payment to Hall Homes upon the closing of the 2008 PSA, which did not occur.

DISCUSSION

A. Summary Judgment Standard "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried." Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) (citations omitted). It is well-settled that "[o]n a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried." United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) (citations omitted). A genuine factual issue exists if, taking into account the burdens of production and proof that would be required at trial, there is sufficient evidence favoring the non-movant such that a reasonable jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The initial burden of establishing that no genuine factual dispute exists rests upon the party seeking summary judgment. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citation omitted). This burden "may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). On the other hand, "the non-movant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) (citations omitted). An "opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, ...


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