Goli Realty Corp. v. Halperin

• Citation: 5 N.Y.S.3d 328 (Table)
• Decision Date: 05 December 2014
• Docket Number: No. 41574/2010.,41574/2010.
• Court: United States State Supreme Court (New York)
• Parties: GOLI REALTY CORP., Plaintiff(s), v. John HALPERIN; Peter Halperin; SPJ, LLC ; Amerada Hess Corporation, Defendant(s).

5 N.Y.S.3d 328 (Table)

GOLI REALTY CORP., Plaintiff(s)
v.
John HALPERIN; Peter Halperin; SPJ, LLC ; Amerada Hess Corporation, Defendant(s).

No. 41574/2010.

Supreme Court, Suffolk County, New York.

Dec. 5, 2014.

Joseph A. Salvi, Esq, Southampton, attorney for defendants.

Dwayne S. Wagner, Esq., Westhampton Beach, attorney for plaintiff.

ANDREW G. TARANTINO JR., J.

PROCEDURAL HISTORY

Plaintiff, Goli Realty Corp, commenced this action by Summons and Complaint on November 12, 2010. Plaintiff claimed damages based upon Defendants' failure to pay real estate broker's commissions for a lease procured by Plaintiff. Plaintiff's claims included breach of contract, unjust enrichment, and tortious interference. Defendants filed a Verified Answer on December 16, 2010, in which were pleaded affirmative defenses of Statute of Frauds and Statute of Limitations. A trial without jury was conducted over two days in September 2014. The Court reserved decision.

TESTIMONY

Hossain Amirthmasebi [Amir] has owned, for about 16 years, Goli Realty which is licensed and primarily engaged in commercial real estate with nationally known companies. Amir first met Defendant Halperin in about 1990. In 2006, John Halperin telephoned Amir about securing a gas station lease for land owned by Defendants in Quogue. On June 21, 2006, Halperin emailed Amir a survey of the property for which Halperin was seeking a tenant. Amir began gathering information, prepared a marketing package, and reached out to Hess, Walgreens, and both Chase and Roslyn Banks. Amir stated he worked with Tony Pagano, the realty manager for Hess Corporation. Amir submitted a June 23, 2006, letter he sent to Pagano proposing the subject property for a Hess gas station. Amir had enclosed a data sheet, Hagstrom map site location, survey, traffic count map, zoning map, demographics, gasoline competition map and an aerial picture of the site. On about September 19, 2006, Amir escorted Pagano on a site tour. In a follow-up letter to Pagano dated September 19, 2006, Amir confirmed Hess' interest in proceeding with the subject property. Amir informed Pagano that the owners would not “take less than $180,000 as starting rent” and invited Pagano to discuss the rest of the “economic terms.”

On September 22, 2006, Amir, with Pagano's authorization, sent John Halperin a proposal. The first three (3) pages outlined the basic rent as follows:

Year 1–5$180,000 per year

Year 6–10$198,000 per year

Year 11–15$217,800 per year

Year 16–20$239,580 per year.

The proposal then continued with the following options:

Option 1Year 21–25$263,538 per year

Option 2Year 26–30$289,892 per year

Option 3Year 31–35$318,881 per year

Option 4Year 36–40$350,769 per year

Attached to the proposal was a Commission Agreement which Amir expected Halperin to sign and return. In part, the agreement provided:

“If a lease is signed, it is understood and agreed that our commission shall be computed according to the following formula:

SEVEN percent (7%) of the first three (3) years net rent

FOUR percent (4%) of the each year net rent thereafter

Which shall become due and payable to Goli Realty Corp. in its entirety upon the occupancy of the “Tenant” or the payment of the first month's rent, whichever occurs first.”

Amir testified that after sending Halperin the proposal and commission agreement, Halperin telephoned Pagano directly. On October 3, 2006, Amir received a letter from Defendants' counsel which stated:

“you inquired if SPJ was interested in receiving a proposal for the letting of the property to the Walgreen [sic] chain for the operation of a Walgreen [sic] retail store. John Halperin expressed an interest in receiving such an offer for his review.”

It also stated:

Your proposals are rejected in their entirety; and they are deemed to be without substance, authority and efficacy of any kind.”

On November 2, 2006, Amir responded to the attorney's letter. While contesting statements made by the attorney, Amir wrote

“When John Halperin gave me a listing he didn't limit me to market this property to only one entity.”

Then on November 6, 2006, Amir sent a proposal to John Halperin for a proposed Walgreens Drug Store which provided:

Base Rent$250,000 per annum with 10% increase every 10 year through base term.

Attached was a proposed survey delineating the construction of a pharmacy. On November 15, 2006, Amir sent another letter to Halperin wherein Amir memorialized sending Defendants both the Hess and Walgreens proposals and stated he was awaiting Halperin's decision. Amir said that the Halperins then telephoned and wanted him to proceed with both proposals, while also exploring the purchase of adjacent land to increase the area of the subject property in anticipation of zoning variances.

Amir subsequently learned that Defendants entered into a lease with Hess on September 17, 2007. The lease outlined the basic rent as follows:

Months1–60$15,000.00 per month

Months61–120$16,500.00 per month

Months120–180$18,315.00 per month

Months181–240$20,329.65 per month

Months241–300$25,501.51 per month

Months301–360$25,501.51 per month

The Renewal Options were as follows:

Months361–420$28,816.71 per month

Months421–480$32,562.88 per month

For its next witness, Goli Realty read from the Examination Before Trial taken of Anthony Pagano on November 15, 2013. In pertinent part, Pagano acknowledged that he did authorize the proposal which Amir sent to Halperin. Pagano also acknowledged that he spoke with Peter Halperin after the proposal was sent because Hess does not pay commissions and Halperin needed to work on the commission issue with Amir.

John Halperin [JHalperin] testified next as vice president and co-owner of SPJ, LLC. It was undisputed that SPJ, LLC. owned the subject property. In 2006, a Shell gas station existed on the property, but JHalperin wanted to seek out a new tenant. He knew Amir over the past years having spoken with him, but denies ever having used Amir as a broker. JHalperin stated that is was Amir who made the first call to Halperin about the property. JHalperin claimed that he told Amir that they had a proposal from CVS, and that he told Amir to explore a proposal from Walgreens. JHAlperin then...