DECISION AND ORDER
O. PETER SHERWOOD J.S.C.
Motions designated sequence numbers 004 and 005 are consolidated for disposition.
In motion sequence number 004, defendants SL Whale Realty, LLC ("SL Whale"), Brickell 13 Whale LLC ("Brickell 13"), Mark Karasick, and Harry Skydell (collectively, the "Purchaser Defendants") move, pursuant to CPLR 3211(a)(7), to dismiss the Amended Complaint.
In motion sequence number 005, defendants Nissan Perla and Whale Realty LLC (collectively, the "Whale Defendants") move, pursuant to CPLR 3211(a)(7), to dismiss the Amended Complaint.
Plaintiff, Broadway West Enterprises ("Broadway West"), commenced this action seeking to recover compensatory damages for breach of contract and related claims arising out of the sale of real property located at 14 53rd Street, Brooklyn, New York (the "subject premises"). Broadway West is a licensed real estate broker. Defendant Doral Money, Inc. ("Doral") held a deed in lieu of foreclosure to the subject premises. Broadway West essentially claims that all defendants owe it a two percent broker commission, plus interest, upon the sale of the subject premises to defendants SL Whale and Brickell 13.
The facts are derived from a prior decision and order in this action (Dec & Order dated September 18, 2012), as well as the allegations in the Amended Complaint, which, on a motion to dismiss, must be accepted as true. Doral had a first priority lien on the subject premises owned by Whale Realty. Whale Realty defaulted on the mortgage held by Doral. As a result, Doral actively solicited offers from potential purchasers in order to sell the subject premises and satisfy the mortgage.
Doral enlisted the services of Nakazawa & Suzuki Capital LLC ("NS Capital") and/or Suzuki Capital LLC ("Suzuki Capital") to assist in finding a buyer for the subject premises. NS Capital, in turn, retained the real estate brokerage firm Marcus & Millichap, which "retained Broadway West as a cooperating broker in furtherance of identifying prospective purchasers of the Property" (Amended Compl. ¶20). The Amended Complaint does not allege that any broker or a "cooperating broker" agreement involving plaintiff was ever executed. No broker or "cooperating broker" agreement is attached to the papers submitted. At oral argument on a prior motion, counsel for Broadway West declined to claim that the action is based on breach of any such agreement or that Broadway West is an intended third party beneficiary of any contract.
In or about April 2011, Broadway West contacted defendant Solomon Knopf ("Knopf') as a prospective purchaser. Knopf referred Broadway West to defendant Eli Kass, who advised that he was Knopfs business partner and president of non-party 974 East Associates, Inc. ("974 East"). Plaintiff also advised Marcus & Millichap of the potential interest of Knopf and Kass in
In May 2011, Broadway West introduced 974 East to Doral as a potential purchaser of the subject premises. Doral issued confidential and proprietary information relating to the project, including copies of abstracts of commercial leases and appraisal of the subject premises to Suzuki Capital. 974 East showed serious interest in the subject premises and, after extensive negotiations, the parties executed an "Offer Sheet" on June 7, 2011. Defendants Mark Karasick ("Karasick") and Harry Skydell ("Skydell") were investors in 974 East and active participants in the negotiations. Broadway West alleges that it also assisted in the negotiation process.
At oral argument on the prior motion, counsel for Broadway West identified the Offer Sheet as the contract on which Broadway West's claims were based. The Offer Sheet provides that "[s]eller agrees that brokerage commissions of 2% of the total purchase price, in connection with a consummation of a sale from Seller to 974 East Associates, Inc. ... shall be the sole responsibility of Seller" (Offer Sheet, Lieblich Affid, Exh A). The Offer Sheet also recites: "Brokers: Adelaide Polsinelli" (id). Ms. Polsinelli is associated with Marcus & Millichap.
The Amended Complaint alleges that without knowledge of brokers, Broadway West or Marcus & Millichap, Doral and defendant Nessa Perla, president of Whale Realty, instead sold the subject premises to SL Whale and Brickell 13 on August 31, 2011. The SL Whale and Brickel 13 limited liability companies were formed on August 9, 2011 and August 15, 2011, respectively. Karasick and Skydell were members of the newly formed entities. Plaintiff alleges that the contract terms of the final sale were identical to those of the pending sale to 974 East, and, therefore, Doral took advantage of the negotiations and due diligence performed by the brokerage firms on behalf of 974 East. Plaintiff alleges that defendants schemed to defraud plaintiff of a 2% brokerage commission, as contracted for in the June 7, 2011 Offer Sheet. This action ensued.
Broadway West filed a Complaint alleging causes of action against all defendants, without any distinction, for scheme to defraud (first cause of action), breach of contract/tortious interference with contractual relations (second cause of action), quantum meruit (third cause of action), unjust enrichment (fourth cause of action), ...