Saunders Ventures, Inc., doing business as Saunders and Associates, appellant,
Catcove Group, Inc., et al., respondents. Index No. 37906/11
Conforti & Waller, LLP, Southampton, NY (Anthony T.
Conforti and Kenneth Cooperstein of counsel), for appellant.
Rosenberg & Diamond, LLP, New York, NY (David Rosenberg
of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover a real estate brokerage commission, the
plaintiff appeals from (1) an order of the Supreme Court,
Suffolk County (Whelan, J.), dated December 4, 2014, which
denied its motion for summary judgment on the complaint and
granted the defendants' cross motion for summary judgment
dismissing the complaint, and (2) a judgment of the same
court entered March 16, 2015, which, upon the order, is in
favor of the defendants and against it dismissing the
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is modified, on the law,
by deleting the provision thereof dismissing the complaint in
its entirety and substituting therefor a provision dismissing
only the second cause of action; as so modified, the judgment
is affirmed, that branch of the defendants' cross motion
which was for summary judgment dismissing the first cause of
action is denied, and the order is modified accordingly; and
it is further, ORDERED that one bill of costs is awarded to
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated with the entry of the
judgment in the action (see Matter of Aho, 39 N.Y.2d
241). The issues raised on the appeal from the order are
brought up for review and have been considered on the appeal
from the judgment (see CPLR 5501[a]).
plaintiff is a licensed real estate brokerage firm. The
defendants are the former owners of parcels of vacant real
property located in Southampton (hereinafter the subject
property), which had been identified by the Peconic Estuary
Program as high priority for preservation and protection.
letter agreement dated July 17, 2009, the plaintiff and the
defendants entered into a nonexclusive brokerage agreement
for a period of 120 days concerning the sale of the subject
property at the listed price of $8 million. The brokerage
agreement provided that the plaintiff would be entitled to a
commission of 6% of the purchase price upon closing, from the
proceeds of the sale.
brokerage agreement also included an extension clause, or
"tail provision, " which is commonly included in a
real estate listing contract to protect a broker from loss of
compensation when a property is sold by the owner after the
termination of the listing contract to a person who was
introduced to the property by the broker (see Ackerman v
Dobbs, 181 A.D.2d 704 ; Picotte Real Estate v
Gaughan, 107 A.D.2d 996, 997). The extension clause
provided that "[a]t the end of the term, [the
defendants] will either mutually extend the agreement or [the
plaintiff] should provide a written list... of any actively
interested purchasers and [the plaintiff] will be protected
for a period of one year thereafter should a closing take
place with [the plaintiff's] registered client."
to the expiration of the brokerage agreement, in August 2009,
the plaintiff's broker, Lee Minetree, arranged and
attended a meeting with representatives of the defendants,
The Nature Conservancy of Long Island (hereinafter TNC) and
the County of Suffolk, to discuss the acquisition of the
subject property by the County via a "bargain sale,
" with TNC serving as an intermediary. According to the
plaintiff, the subject property would first be conveyed by
the defendants to TNC, the intermediary, for a purchase price
less than the appraised fair market value, and the subject
property then would be conveyed by TNC to the County, the
ultimate purchaser. Once completed, the seller would receive
the bargained-for sale price for its property and then take a
charitable deduction in an amount equal to the difference
between the appraised fair market value and the actual
consideration received from the sale. After the initial
meeting, the County made a formal offer to the defendants for
the purchase of the subject property. As negotiations
progressed, contracts for the two-part sale were drafted.
January 2010, the plaintiff provided the defendants with two
lists of prospective purchasers, which included the Peconic
Land Trust (hereinafter PLT), TNC, and the County. As
evidenced by a document signed only by the plaintiff's
broker on August 2, 2010, the brokerage commission the
plaintiff was willing to accept was purportedly reduced from
6% to 4%.
around September 2010, the defendants replaced TNC with PLT
as the intermediary. On September 21, 2010, the defendants
and PLT executed a contract of sale for the subject property.
This contract, as amended on January 26, 2011, and further
amended in June 2011, closed on August 31, 2011. One week
later, PLT conveyed six parcels, consisting of 13.9026 acres,
to the County for the purchase price of $2, 432, 955.
plaintiff commenced this action against the defendants in
December 2011, alleging breach of contract and unjust
enrichment. The plaintiff alleged that it was entitled to
recover the sum of $97, 318.20, representing a 4% commission
on the sale of the subject property, since it was the
procuring cause of the sale, and that the defendants would be
unjustly enriched should they be permitted to keep the entire
proceeds of the sale. The plaintiff subsequently moved for
summary judgment on the complaint and the defendants
cross-moved for summary judgment dismissing the complaint.
The Supreme Court granted the defendants' cross motion,
denied the plaintiff's motion, and dismissed the
complaint. The plaintiff appeals.
prevail on a cause of action to recover a commission, the
broker must establish (1) that it is duly licensed, (2) that
it had a contract, express or implied, with the party to be
charged with paying the commission, and (3) that it was the
procuring cause of the sale" (Douglas Elliman, LLC v
Silver, 136 A.D.3d 658, 659; see Town & Country
Southampton Inc v Grey, 299 A.D.2d 541, 541).
"Where the broker is not involved in the negotiations
leading up to the completion of the deal, the broker must
establish that [it] created an amicable atmosphere in which
negotiations proceeded or that [it] generated a chain of
circumstances that proximately led to the sale"
(Dagar Group v Hannaford Bros. Co., 295 A.D.2d 554,
555). "Although as a general rule a real estate broker
will be deemed to have earned a commission when the broker
produces a purchaser who is ready, willing, ...