Saunders Venture Inc. v. Catcove Grp., Inc.
| Decision Date | 04 December 2014 |
| Docket Number | No. 37906/2011.,37906/2011. |
| Citation | 5 N.Y.S.3d 330 (Table) |
| Parties | SAUNDERS VENTURE INC., d/b/a/ Saunders and Associates, Plaintiff, v. CATCOVE GROUP, INC., and Riverside Catwalk, LLC, Defendants. |
| Court | New York Supreme Court |
Conforti & Waller, LLP, Southampton, Attys. for Plaintiff.
Certilman, Balin, Adler et al, East Meadow, Attys. for Defendants.
Upon the following papers numbered 1 to 1–22 read on this motion by the plaintiff and motion by the defendants for summary judgment; Notices of Motion/Order To Show Cause and supporting papers: 1–4; 5–9; Notice of Cross Motion and supporting papers:; Opposing papers 0–11; Reply papers 12–14; Other 15–16 (plaintiff's memorandum in support); 17–18 (plaintiff's memorandum in opposition); 19–20 (defendants' memorandum in support); 21–22 (defendants' reply memorandum); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion (No.001) by the plaintiff for an award of summary judgment on its complaint in this action in which it seeks recovery of a broker's commission is considered under CPLR 3212 and is denied; and it is further
ORDERED that the separate motion (# 002) by the defendants for summary judgment dismissing the complaint is considered under CPLR 3212 and is granted.
The plaintiff, a licensed real estate broker, entered into letter contract dated July 17, 2009 with an entity known as Catcove Corp., an apparent agent of the defendants, in which it retained the plaintiff as a broker, to market two tracts of land owned by the defendant, for sale in a single transaction (see Exhibit D attached to the plaintiff's moving papers). One tract was comprised of eight single and separate parcels on Flanders Road while the second was comprised of an undivided tract known as the Peconic River parcel. The purchase price was fixed in the letter agreement at $8,000,000.00, as was the brokerage commission of 6% of that purchase price. The term of the agreement was limited to 120 days from the date of the agreement. The letter agreement imposed upon the plaintiff an obligation to provide a list of clients to whom the properties had been shown. The letter agreement went on to provide the following language regarding termination: It appears from the record that an initial list was furnished by the plaintiff following execution of the letter agreement that included the Nature Conservancy (see Exhibit D attached to the defendants' moving papers). A second list was furnished in January of 2013, following a prompt from the defendants (see id., see also Exhibit G attached to the plaintiff's moving papers). Among those newly added in the second list were The Peconic Land Trust and the County of Suffolk.
In the complaint filed herein, the plaintiff claims that prior to the expiration date of the agreement, the plaintiff introduced the defendants to the Acquisition Supervisor for the Suffolk County Department of Economic Development and Planning and to Randall Parsons, an advisor to the Nature Conservancy of Long Island [hereinafter “TNC”], a non-profit organization dedicated to conservation and land preservation. The plaintiff is alleged to have understood that TNC would act as an intermediary purchaser for the County of Suffolk, the ultimate purchaser of the subject land tracts, under a tax incentivized transaction known as a “bargain sale”.
According to the plaintiff's moving papers, this type of transaction involves two sales by which a non-profit entity contracts to purchase real property from a seller, after which, the non-profit conveys the property over to an ultimate purchaser. The purchase price is fixed in the contract between the seller and the non-profit intermediary purchaser, although it is controlled by an offer of the ultimate purchaser and is generally well below the fair market value of the premises as determined by an appraisal commissioned at the expense of the seller. At the closing of this sale, the seller receives the below market purchase price set forth in the contract of sale between it and the non-profit intermediary purchaser together with a charitable deduction in an amount equal to the difference between the appraised fair market value and the tendered purchase price.
The plaintiff alleges that the defendants requested that the plaintiff continue its efforts to market the property following the November 14, 2009 expiration of the July 17, 2009 brokerage agreement and that it did so by focusing its efforts upon bringing the TNC and the County of Suffolk to terms with the defendants. By correspondence dated May 6, 2010, a principal of the plaintiff explained the anticipated two step process of a proposed bargain sale with the Nature Conservancy to the defendants as follows: . The plaintiff goes on to explain that the Nature Conservancy will prepare its contract with the defendants and that “the County will prepare the contract between themselves and the Nature Conservancy” (see Exhibit E attached to the plaintiff's moving papers). It is not disputed, however, that no deal was ever consummated between the defendants and TNC or between TNC and the County of Suffolk prior to the expiration of the 120 day term of the brokerage agreement nor during the one year time period following such termination, during which, the plaintiff's brokerage commission was protected under the terms of the brokerage agreement.
Following the failure to come to terms with TNC or the County, the defendants are alleged to have directed the replacement of TNC with the Peconic Land Trust [hereinafter “PLT”], a non-profit organization similar to the TNC, who would serve as a substitute intermediary to a bargain sale culminating in County ownership. The County was allegedly not interested in paying the $8,000,000.00 purchase price for the parcels which the plaintiff suggested was too high but it was allegedly considering a partial purchase, so as to reduce that price. The defendants' agreement to such a sale is alleged to be evidenced by a writing dated August 2, 2010, in which, the plaintiff offers to reduce the 6% commission set forth in the July 17, 2009 agreement to 4%, even though the defendants never signed off on such proposal.
On September 21, 2010, a contract of sale between the defendants and PLT was entered into which provided for the sale of four of the eight parcels of the Flanders tract together with the Peconic parcel and the gifting by the defendants of the remaining four Flanders parcels to PLT. The purchase price was listed therein at...
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