NRT N.Y., LLC v. Morin
| Decision Date | 19 October 2015 |
| Docket Number | Index No. 152678/2013 |
| Citation | 2015 NY Slip Op 31932 (U) |
| Parties | NRT NEW YORK, LLC, d/b/a CORCORAN GROUP, and CHARLES RUTENBERG, LLC, Plaintiffs, v. CHRISTOPHER MORIN and MEI MORIN, Defendants. CHRISTOPHER MORIN and MEI MORIN, Third-party Plaintiffs, v. NATALIE ESPOSITO, Third-party Defendant. |
| Court | New York Supreme Court |
DECISION AND ORDER
Mot. Seq. #003
This is an action for breach of contract based on a brokerage agreement between plaintiff, Charles Rutenberg, LLC ("Rutenberg" or "Plaintiff"), and defendants, Christopher Morin and Mei Morin (collectively, the "Morins" or "Defendants"), dated June 23, 2009 (the "Agreement"), concerning the lease and eventual sale of the residential real property located at 201 E. 80th Street, Unit 3AB, New York, New York (the "Unit," "Apartment" or "Premises"). Plaintiff claims that the Agreement authorizes Rutenberg, as principal broker, to locate a tenant for the Premises. In addition, Plaintiff claims that the Agreement entitles Rutenberg to a six percent commission fee for the sale of the Premises, if thePremises are sold to a tenant procured under the Agreement. Plaintiff claims that Rutenberg procured tenants for the Apartment, pursuant to the Agreement, and that Defendants ultimately sold the Premises such tenants. Plaintiff now seeks to recover the six percent commission fee for the sale of the Premises to a lessee procured under the Agreement.
Former plaintiff, NRT New York d/b/a Corcoran Group ("Corcoran"), commenced this action on March 25, 2013, by Summons and Complaint. Corcoran filed an Amended Complaint on July 1, 2013, adding Rutenberg as an additional plaintiff in this case. On July 9, 2013, Defendants moved to dismiss the Amended Complaint; Corcoran and Rutenberg cross-moved for leave to file a Second Amended Complaint on July 22, 2013. By Order dated December 4, 2013, Corcoran and Rutenberg's cross-motion was granted, and Defendants' motion to dismiss the Amended Complaint was denied. Corcoran and Rutenberg filed a Second Amended Complaint on January 6, 2014. On January 30, 2014, Defendants moved to dismiss the Second Amended Complaint. By Order dated May 14, 2014, Defendants' motion to dismiss the Second Amended Complaint was granted only with respect to former plaintiff Corcoran. Corcoran's claims against Defendants were severed and dismissed, and Defendants were directed to answer Rutenberg's Second Amended Complaint.
On June 10, 2014, Defendants interposed an Answer to Rutenberg's Second Amended Complaint, asserting various affirmative defenses and counterclaims against Rutenberg. Defendants also commenced a third-party action against Natalie Esposito ("Esposito"), by Third-Party Summons and Third-Party Complaint filed on June 10, 2014 along with Defendant's Answer to Plaintiff's Second Amended Complaint and Counterclaims.
Plaintiff and Esposito now move for an Order, pursuant to CPLR § 3212, directing summary judgment in favor of Rutenberg and against Defendants in the sum of $156,750.00, plus interest from June 9, 2011 and reasonable legal fees; and, pursuant to CPLR §§ 3211(a)(1), (a)(7), and 3016(b), dismissing Defendants' Third-Party Complaint, Counterclaims, and Affirmative Defenses, on the basis of documentary evidence and failure to state a claim. In support, Plaintiff submits the affidavit of Esposito, dated July 30, 2014, and exhibits annexed thereto.
Defendants oppose1. In support, Defendants submit the affidavit of Christopher Morin ("Mr. Morin") and exhibits annexed thereto.
Oral argument was heard on Plaintiff's motion. The minutes of the oral argument were provided to the Court thereafter.
Turning first to Rutenberg's motion for summary judgment, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). However, pursuant to CPLR § 3212(f), the court may deny a motion for summary judgment, "should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated". (CPLR § 3212[f]).
"The elements of a breach of contract claim are formation of a contract between the parties, performance by the plaintiff, the defendant's failure to perform, and resulting damage." (Flomenbaum v. New York Univ., 2009 NY Slip Op 8975, *9 [1st Dep't 2009]). On a motion for summary judgment in a contract dispute, it is the Court's responsibility, if possible, to determine the intent of the parties from the four corners of the document. (Diversified Group Inc. v. Sahn, 259 A.D.2d 47 [1st Dep't 1999]). "[W]hen parties set down their agreements in a clear, complete document, their writing should . . . be enforced according to its terms." (Vermont Teddy Bear, Inc. v. 538 Madison Realty Co., 1 N.Y. 3d 470, 475 [2004] [citations omitted).
"Whether or not a writing is ambiguous is a question of law to be resolved by the courts." (W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 162 [1990]). "A contract is unambiguous if the language it uses has 'a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion.'" (Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 [2002] quoting Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 355 [1978], rearg denied, 46 N.Y.2d 940 [1979]). "[I]f the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity." (Greenfield, 98 N.Y.2d at 569-70).
When a contract is unambiguous, its construction is a matter of law "and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms." (Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 [2007]). Extrinsic and parol evidence may not be used to "create" an ambiguity in a written agreement which is complete, clear, and unambiguous on its face. (W.W.W. Associates, 77 N.Y.2d at 157). Thus, "matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument." (Teitelbaum Holdings, Ltd. v. Gold, 48 N.Y.2d 51, 56 [1979]). Indeed, "[t]he best evidence of what parties to a written agreement intend is what they say in their writing." (Greenfield, 98 N.Y.2d at 569 quoting Slamow v. Del Col, 79 N.Y.2d 1016, 1018 [1992]; Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355 [1978] []).
The elements of a cause of action for breach of fiduciary duty include: (1) the existence of a fiduciary relationship; (2) misconduct; and (3) damages caused by the misconduct. (Armentano v. Paraco Gas Corp., 90 AD3d 683, 935 NYS2d 304 [2d Dep't 2011]). A cause of action sounding in breach of fiduciary duty must be pleaded with particularity. (CPLR § 3016[b]).
In New York, it is "well settled" that a real estate broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal. (Dubbs v. Stribling & Assocs., 96 N.Y.2d 337, 340 [2001]; Douglas Elliman LLC v. Tretter, 84 A.D.3d 446, 448 [1st Dep't 2011] []). A realestate broker's fiduciary duties include "an obligation to keep her principal informed of all material facts within the broker's knowledge regarding the relevant transaction." (Walker v. Insignia Douglas Elliman LLC, 79 A.D.3d 511, 512 [1st Dep't 2010]). If the broker's interests are divided due to a personal stake in the transaction, (Dubbs, 96 N.Y.2d 337 at 340-41, quoting Wendt v. Fischer, 243 N.Y. 439, 443 [1926]). Where a real estate broker breaches his or her fiduciary duty to the principal, "the broker forfeits his or her right to a commission, regardless of whether damages were incurred." (Douglas Elliman LLC v. Tretter, 84 A.D.3d at 448).
Generally, the applicable statute of limitations for breach of fiduciary claims depends upon the substantive remedy sought. (Kaufman v. Cohen, 307 A.D.2d 113, 118 [1st Dep't 2003]; Yatter v. William Morris Agency, 256 A.D.2d 260, 261 [1st Dep't 1998]). Where the relief sought is equitable in nature, the six-year limitations period of CPLR § 213(1) applies. (Loengard v. Santa Fe Indus., 70 N.Y.2d 262, 267 [1987]). On the other hand, "where suits alleging a breach of fiduciary duty seek only money damages, courts have viewed such actions as alleging 'injury to property,' to which a three-year statute of limitations applies." (Kaufman, 307 A.D.2d at 118; CPLR § 214[4]).
Additionally, "[t]he case law in New York clearly holds that a cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period." (Kaufman, 307 A.D.2d 113 at 119...
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