ScalaCustom Props., Ltd. v. Birol
| Decision Date | 09 October 2013 |
| Docket Number | Index No: 15774/2007 |
| Citation | 2013 NY Slip Op 32730 |
| Parties | ScalaCustom Properties, Ltd., Plaintiff(s), v. Ohran Birol and Nuray Birol, Defendant(s). |
| Court | New York Supreme Court |
The non-jury trial of this matter was held before the undersigned on June 24, 2013. In addition to a number of items of documents pre-marked as exhibits and/or evidence, the plaintiff relied upon four (4) witnesses: Mark Thomas Scala, Ronald Scala, Ohran Birol and Nuray Birol. The defense called no witnesses but instead relied instead upon cross-examination of each witness.
At the conclusion of the proceedings, in lieu of summations and after the defendants' application for a trial order of dismissal (decided below), both sides were invited to submit written factual and legal arguments as well as any requests for findings of fact pursuant to CPLR §4213 by July 12, 20131. Those memoranda having since been received and reviewed, the Court's determination is as follows:
To begin with, there are a number of background facts which are not in serious dispute and were stipulated and agreed to by the parties at the trial's commencement. Specifically, there is nocontest that this matter involves a premises located at 236 Dune Road, Quogue, New York, which conssts of a condominium unit (# 236) purchased on October 2, 1995 by the herein co-defendants/ husbmd and wife as tenants by the entirety. On April 19, 2006, the defendant Ohran Birol signed "Exclusive Agency Agreement" appointing the plaintiff real estate agency as an agent to sell the premises for $1.75 million. The plaintiff contends that on August 7th, 2006. it informed Ohran Birol that a purchaser agreed to purchase the premises for $1.75 million in cash. The defendants, however, refused, claiming that the defendant Nuray Birol had never agreed to sell the premises. On November 27, 2006, the defendants transferred the property to Nuray Birol. By summons and complaint dated May 21, 2007, the plaintiffs allege two causes of action, one for breach of contract and one for quantum meruit. Both seek damages in the amount of $105,000.00. There is no counter-claim
Supplementing those facts is the trial's evidence which included, of course, the testimony. As to that testimony, its essence and its major and/or most relevant contentions may summarized as follows:
Mark Thomas Scala's testimony indicated that he was the real estate agent who took the listing but he no longer works lor the plaintiff real estate agency. That agreement was effective April 6, 20062 signed in front of him and expired on July 19, 2006. A second agreement was executed thereafter extending the agency to September 31, 2006 and containing the same listing or asking price of $1.75 million as well as the same six (6) per cent commission. Thereafter, the property was marketed by advertisements in The New York Times, provided to a multiple listing service as well as local papers. Also, a 24" by 24" sign was placed on the property, the premises was shown to 16 to 18 potential buyers, and several "'open-houses" were conducted. There was an initial "all-cash" offer of $1.55 million by a Paul Dans; that offer was rejected as the defendants purportedly wanted more money. Dans then offered to pay the full asking price. That offer was transmitted to defendants who allegedly accepted it but shortly thereafter, Mrs. Birol "changed her mind and didn't want to sell" and gave no reason. The witness also indicated that in prior conversations she hadn't ever said she didn't want to sell the property.
On cross-examination, the witness further indicated that he had had conversations with Mrs. Birol prior to her husband signing the agreement. They had spoken about the price and other matters about a sale during approximately February or March of 2006 and she had indicated that she wanted to sell. (With regard to this point, he was somewhat adamant.) He added that he may have known them for as much as a year before the execution of the agreement. Although he knew they both owned the property, he had accepted Mr. Birol's signature as signing for both him and his wife as she was unavailable. He also added that between the signing of the lirst (April) agreement and the second (July), he had spoken with Mrs. Birol a number of times. (On his re-direct examination, he was also adamant about this).
The witness also admitted that he wasn't present when second offer was accepted. Also, while the property is one of two units which make up the condominium, the condominium association has but two (2) separate apartments and owners. Mr. Birol purportedly told him that the other unit's owner had "no problem" with the sale and they had congratulated the Birols.
Ronald Scala testified that he has been a licensed real estate broker for 25 years, including all time* relevant to this matter. He had sent the first agency agreement to the defendants by facsimile, and lie sent the extension the day after it expired. His description of his various efforts to sell the property paralleled the first witness, and he added that he had personally seen the sign directly next to the front door and that it was "impossible" not to see it.
As to the first offer, he testified that it was all cash but it was refused and unacceptable as "not enough money." Indeed, when he spoke on the phone to Mrs. Birol about that offer, she "made it empathic (sic) that it was not enough money." The witness indicated that her husband would, however, have accepted it. Thereafter, when the full asking price was offered Mr. Birol was "ecstatic"; subsequently, however, she called and said she "changed her mind" and didn't "want to sell."
Four weeks later, the witness purportedly sold Dans - "a guy running around with a lot of money in his pocket, all cash" - a waterfront property.
During Scala's cross-examination he stated that he had sold hundreds of houses where only one of the spouses signed. He also testified that he spoke with Mrs. Birol after the second offer. He strongly contended that she had previously and telephonically accepted that offer. Subsequently, and after her rejection, he questioned her change of heart as they had prior, contrary conversations about the sale. He also stated that her husband had asked him to try to convince her to sell.
Ohran Birol testified that he and his wife own the property and used it as an investment/rental property. Rentals, albeit sporadic over the years, varied from $20,000.00 to $36,000,000 a season. Although he wanted to sell, purportedly his wife didn't, and Scala "came into the game very late." In 2000 or so. Mr. Birol was told he could get "two million" for the unit. He had been offering it for sale and "praying" for an bid that his wife couldn't refuse. He also indicated she was aware he was trying to sell. He added that his fears of a real estate crash fueled his desire to sell and that either the day he signed the agreement or the next he told his wife.
He also stated that he had previously purchased the neighboring unit -234 - for $335,000.00 or so and sold it for S630.000.00 within two years. As to the unit of this litigation, he had accepted the first $ 1,550,000 offer "right away" but his wife rejected it. He admitted that Scala's firm did "their job" but contended that his wife never wanted to sell. After the first offer, his wife purportedly said she didn't want to sell. He claimed that he told Scala she was "crazy" and didn't want to sell it for the first offer, but perhaps if they got the full amount she would and he asked Scala to talk to her. 1 lis wife, however, indicated that she didn't want to sell and told her husband to "get that guy (Scala)off [her] back."
He also alleged what was apparently purported to be an impediment to the sale: the right of first refusal by condominium owner of an adjoining unit (who would have had to pay the same price. As to the condominium board members, they are comprised of him, his wife, and one other; the Birols, however, enjoy more voting power than the other owner by a margin of 53% to 47%. As indicated by his testimony, the Birols have apparently been historically lax and somewhat less than faithful to the formalities and regulations of the condominium. For example, notice requirements of the by-laws (such as leasing notices and intent to sell) were not followed.
He also alleged that he resided in Quogue and his wife on Shelter Island and that the ''for sale" sign on the street had been removed by the police. He further contended that he questioned Mark Scala as to whether Mrs. Birol should also sign the listing agreement but was told "it's not necessary." When this witness spoke to her about it that day or the day after, she "was not happy" and said she didn't want to sell. He also contended that his wife never had met with Mark Scala before they had listed their other Jones Road property. After the first offer was conveyed, he said she didn't want to sell.
Finally, on redirect, he contended that he was never told the offer was a cash deal.
The testimony of the final witness, Nuray Birol, was comparatively brief. She indicated that she first learned of the agency agreement on or about the day her husband signed.
She further stated that she had read condominium by-laws when they purchased the property and was familiar with them but never employed the notice requirements. She admitted they hold the majority of voting rights and that "we make the by-laws" and "everybody does their own thing."
She claimed she rejected the $1.75 million offer because she was unwilling to sell the property at "no price." She admitted, however, that thereafter she offered the property for sale with a number of other agents because they needed that for a marketing strategy to rent it for the summer. The listing were with a multiple listing service for $3.25 million and for $2,275 million and apparently actively...
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