Fire Island Real Estate, Inc. v. Brokerage, 008898 / 2010

• Decision Date: 09 April 2013
• Docket Number: 008898 / 2010
• Parties: Fire Island Real Estate, Inc., Plaintiff(s) v. Coldwell Banker Residential Brokerage and MITCHELL J. LEVY, Defendant(s)
• Court: New York Court of Appeals Court of Appeals

2013 NY Slip Op 50545

Fire Island Real Estate, Inc., Plaintiff(s)
v.
Coldwell Banker Residential Brokerage and MITCHELL J. LEVY, Defendant(s)

008898 / 2010

County Court, Suffolk County

Decided on April 9, 2013

Scott Hirsch, Esq. Hirsch & Hirsch Esqs Attorneys for Plaintiff

Philip Pierce Esq Margolin & Pierce Esqs Attorneys for Defendants

Andrew G. Tarantino, J.

NATURE OF THE ACTION

Plaintiff, Fire Island Real Estate (F.I.R.E.) brought this action against Defendants, Coldwell Banker Residential Brokerage (COLDWELL) and Mitchell Levy, for commissions it believed it earned from the transaction of a real estate deal. In its opening statement, Plaintiff's counsel argued tortious interference with a contract, unjust enrichment, and constructive trust. Defendant's counsel argued that COLDWELL had an exclusive agreement with the homeowners to sell the residence, a COLDWELL sign was on the property, and the purchaser telephoned COLDWELL after seeing the sign to place a bid on the property. The action was transferred to this Court, pursuant to NY Civ. Pract. Laws & Rule §325(d), and a trial without jury was conducted.

Page 2

PLEADINGS

The Complaint alleged that Defendant Mitchell Levy was an employee and agent of Defendant COLDWELL. F.I.R.E. alleged that in May 2007 it was a listing broker for property identified as 500 Bayberry. It alleged it originally introduced the purchaser, Weinstein, to the property and, as a result, Weinstein purchased the property from former owners, Mishkin and Mahnken. F.I.R.E. asked for the full commission of $28,000.00, and in no event less than 50% of the commission.

Defendant COLDWELL filed a Verified Answer alleging it was the listing agent pursuant to a written agreement with the property owners. It also alleged that if the allegations were true, then Plaintiff's recourse would be against the former owners of the property. Lastly, Defendant COLDWELL alleged that Plaintiff did not plead a viable claim against Levy who was an employee of COLDWELL.

TESTIMONY

F.I.R.E. president Carin Roth testified first. Roth was, and remains, a licensed real estate broker and has worked in the community for 40 years. F.I.R.E. was first approached by the 500 Bayberry owners to rent the house in 2003. F.I.R.E. then listed the rental from 2003 through 2007. According to Roth, in May 2007, the owners completed a sales registry and, between May and September 2007, F.I.R.E. showed the property about 21 times to various persons. Ellen Weinstein was then a prospective buyer who Roth claimed was shown the property 4 times, the first being in September 2007. Roth stated that when Weinstein first appeared in the F.I.R.E. office, Weinstein had copies of the F.I.R.E. website listings in her hands. The subject house listed for $525,000.00; Weinstein offered $465,000.00. Roth stated she communicated the offer to the owners by telephone and kept leaving messages for about 10 days without receiving a reply. On cross-examination, Roth conceded that she worked on "open" listings in the community. She also acknowledged seeing the Coldwell Banker Residential Brokerage sign on the property. Roth claimed that one of the owners, Mishkin, first returned her calls after 10 days at which time Mishkin told Roth he would convey Weinstein's offer to his partner Mahnken. Roth acknowledged that during those ten days Weinstein called F.I.R.E. every 2-3 days, but Roth did not take any of Weinstein's calls. Although Roth believed she conveyed Weinstein's offer to Mishkin in writing she could not locate any such writing.

Plaintiff's next witness was Ellen Weinstein. She is the current owner of 500 Bayberry which she purchased in February 2008. In 2007 she was looking for property and walked into the F.I.R.E. office. She did not recall having any listings in her hands. She stated that no one from F.I.R.E. ever showed her 500 Bayberry. Weinstein stated that the first time she saw the house was on her own. After looking at the house on her own, she then went to the F.I.R.E. office with whom she had previous dealings. Upon further questioning, she recalled later being driven around the community by a F.I.R.E. broker to look at other houses. As Roth and the Weinsteins were passing 500 Bayberry Mr. Weinstein asked to stop and look at the house. Otherwise, according to Weinstein, the F.I.R.E. broker demonstrated no intention of stopping to show Weinstein the property and, in fact, the F.I.R.E. broker told Weinstein that the house would not pass inspection and was considered a tear-down. Weinstein recalled seeing the COLDWELL sign on the property. Weinstein said she asked F.I.R.E. to offer $450,000.00 for the house. In the days that followed, Weinstein called F.I.R.E. frequently but her calls were not returned. After ten (10) days passing without receiving any information from F.I.R.E., Weinstein called COLDWELL directly. She was asked by Mr. Levy to view the house again. Weinstein's bid was conveyed by

Page 3

COLDWELL to the owners. Ultimately, the house did pass inspection, and she is the current owner. Weinstein stated that she did not feel that F.I.R.E. did anything towards helping her purchase the property. On cross-examination she described that when her husband asked to stop and look at 500 Bayberry, Roth did not even get out of the golf cart and Weinstein described Roth as being very disinterested in the property. Instead, Weinstein added that Roth continued talking about houses which Weinstein could not afford. At no time was she able to get confirmation that F.I.R.E. conveyed her offer to the owners of 500 Bayberry. Although she conveyed an offer of $450,000.00 for the house through COLDWELL, the final purchase price negotiated through COLDWELL was $475,000.00. After the engineer's inspection, and with COLDWELL's assistance, the price was reduced $10,000.00. Weinstein said that F.I.R.E. never had anything to do with this transaction.

Plaintiff's last witness was Abigail Medvin. An employee of F.I.R.E., she met Weinstein in September 2007. Medvin claimed she brought Weinstein to 500 Bayberry the first day, and walked together through the house. She added that Weinstein then re-visited the house several times more. Medvin described how Weinstein first offered to buy the Bogart house (no relation to Humphrey), but after that fell through Weinstein made the offer on 500 Bayberry. Medvin then said she made "several" calls to owner Mishkin. On cross-examination, Medvin admitted she never reached Mishkin. On cross-examination by the Court, because of the similarity in appearance between Medvin and Roth, Medvin acknowledged that she was Roth's daughter. Neither party followed up from the Court's inquiry although offered the opportunity.

Defendant called Mitch Levy to testify. He has been in real estate sales since 2005, and was employed at COLDWELL in 2007. Levy produced a document signed in July 2007 purporting to have registered 500 Bayberry with an "exclusive right to sell" until July 2008. Levy first heard from Weinstein in October 2007. He asked Weinstein if she had any agreements with another broker to which she replied she did not. Levy participated in the negotiations between Weinstein and the owners, and recalls reducing the price $10,000.00 after issues were raised in the engineer's report.

DOCUMENTS

Plaintiff provided several documents. First was a 2003 Rental Registry listing only Mahnken as the owner. It appeared to be a F.I.R.E. internal document listing the rental period as May...