CHARLES E. RAMOS, J.S.C.
In motion sequence 001, defendant Atwater Press Realty Corp. ("Atwater") moves pursuant to CPLR 3212 for summary judgment to dismiss the plaintiff Signature Partners, LLC's ("Signature") complaint.
This action involves a dispute over a brokerage commission arising out of a brokerage agreement executed by the parties on August 19, 2009 (the "Exclusive Agreement"). Pursuant to the Exclusive Agreement, Signature was the exclusive sales broker for the fourth and fifth floors of a condominium building located at 207 West 25th Street, New York, New York (the "Atwater Property").
During the term of the Exclusive Agreement, three or four sale offers were received, but none of the offers resulted in a sale of the Atwater Property.
On May 2, 2011, Atwater informed Signature by letter that it was exercising its right to terminate the Exclusive Agreement effective June 2, 2011.
The Exclusive Agreement provided that the cancellation of the Exclusive Agreement shall not affect the rights of Signature with respect to prospective buyers submitted to or considered by Atwater prior to the cancellation of the agreement, nor the authority of Signature to continue to represent Atwater in such matters (the "Tail Provision") (Aff. In Supp., Ex. A).
On May 31, 2011, Signature sent a 471 page list of 43, 000 prospective buyers that were purportedly covered under the Exclusive Agreement's Tail Provision (the "List") (id., Ex. D).
Prior to the June 2, 2011 termination of the Exclusive Agreement, on May 16, 2011, Atwater entered into a second exclusive brokerage agreement with Michael Rudder ("Rudder") of the Rudder Property Group to market the Atwater Property (id., Ex. M).
Rudder attracted interest from Brian Weld ("Weld"), the exclusive real estate broker for the International Alliance of Theatrical Stage Employees (the "IATSE"). Subsequently, on April 3, 2012, the parties entered into an agreement to sell the Atwater Property to an affiliate of the IATSE, IATSE General Corp. ("IATSE GC"). On June 28, 2012, the Atwater Property was sold to IATSE GC (PI. 19-a, ¶ 34).
Thereafter, on October 11, 2012, Signature commenced this action alleging that Atwater breached the Exclusive Agreement by-failing to pay Signature the full commission for the sale of the Atwater Property to IATSE GC.
The Exclusive Agreement provided that Signature is entitled to a full commission equal to 4% of the purchase price, but if another broker procures the purchaser, then Signature and the other broker ...