Vandenberg Inc. v. Townhouse 84, LLC

• Decision Date: 07 September 2012
• Docket Number: Index No. 103018/2010
• Citation: 2012 NY Slip Op 32351
• Parties: VANDENBERG INC., Plaintiff v. TOWNHOUSE 84, LLC, 45 WEST 84th STREET, LLC, AARON PATEL a/k/a CHIRAYU PATEL, KIRAN PATEL, CHECKSPRING BANK, BEN SHAOUL and ZAK TENDLE d/b/a MAGNUM REAL ESTATE GROUP, and PATTERSON BELKNAP WEBB & TYLER, LLP, Defendants
• Court: New York Supreme Court

2012 NY Slip Op 32351

VANDENBERG INC., Plaintiff
v.
TOWNHOUSE 84, LLC, 45 WEST 84th STREET, LLC, AARON PATEL a/k/a CHIRAYU PATEL, KIRAN PATEL,
CHECKSPRING BANK, BEN SHAOUL and ZAK TENDLE d/b/a MAGNUM REAL ESTATE GROUP,
and PATTERSON BELKNAP WEBB & TYLER, LLP, Defendants

Index No. 103018/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

DATED: September 7, 2012

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff sues to recover an unpaid real estate brokerage fee and moves for a default judgment against defendant 45 West 84th Street, LLC, and its principals, defendants Aaron Patel and Kiran Patel. C.P.L.R. § 3215(e). Defendants Townhouse 84, LLC, Shaoul, and Tendle cross-move to dismiss or for summary judgment dismissing the complaint against them. C.P.L.R. §§ 3211(a) (7), 3212(b) and (e). For the reasons explained below, the court denies plaintiff's motion, but grants the three defendants' cross-motion.

II. DEFAULT JUDGMENT

The brokerage agreement is in a letter dated December 18, 2008, retaining plaintiff to find a buyer to purchase the real property at 45 West 84th Street, New York County, for $6.5 million. Only defendant Aaron Patel signed the brokerage

Page 2

agreement, which does not indicate that Aaron Patel was signing on behalf of Kiran Patel or 45 West 84th Street, LLC, or even mention these other defendants. Since plaintiff has not demonstrated facts constituting its claim against defendants Kiran Patel and 45 West 84th Street, LLC, C.P.L.R. § 3215(f), plaintiff provides no basis for a default judgment against these two defendants. Manhattan Telecom, Corp, v. H & A Locksmith, Inc., 82 A.D.3d 674 (1st Dep't 2011); Giordano v. Berisha. 45 A.D.3d 416, 417 (1st Dep't 2007); Feffer v. Malpeso, 210 A.D.2d 60, 61 (1st Dep't 1994).

While Aaron Patel remains a party to and subject to the obligations under the agreement, the evidence plaintiff presents fails to establish his liability. First, the unsworn emails plaintiff relies on, which Dexter Guerrieri, plaintiff's president, fails to incorporate in his affidavit, and for which he fails to lay a foundation for admissibility as business records or another exception to the rule against hearsay, are thus inadmissible hearsay. E.g., C.P.L.R. § 4518(a); Advanced Global Tech, LLC v. Sirius Satellite Radio, Inc., 44 A.D.3d 317, 318 (1st Dep't 2007); Gryphon Pom. VI. LLC v. APP Intl. Fin. Co., B-V-, 18 A.D.3d 286, 287 (1st Dep't 2005); People v. Johnson. 14 A.D.3d 434, 435 (let Dep't 2005); Kane v. Triborough Bridge & Tunnel Auth., 8 A.D.3d 239, 241 (2d Dep't 2004). See Acevedo v. York Intl. Corp., 31 A.D.3d 255, 258 (1st Dep't 2006.); Waiters v. Northern Trust Co. of N.Y., 29 A.D.3d 325, 327 (1st Dep't 2006). Even if the court considers this inadmissible evidence, however,

Page 3

it fails to demonstrate plaintiff's claim against Aaron Patel.

The original agreement provided that plaintiff was to find a buyer willing to purchase the property for no less than $6.5 million. A letter dated June 26, 2009, from Dexter Guerrieri to Aaron Patel, extended the contract term six months and adjusted the required purchase price to no less than $4,999,000. In an email dated December 6, 2 009, to Aaron Patel, Dexter Guerrieri confirmed an offer of $4.4 million. In an email dated December 9, 2 009, Aaron Patel advised Guerrieri that Patel would not accept a purchase price less than $4.5 million. Since plaintiff found a buyer ready, willing, and able to purchase the property for only $4.4 million, this evidence does not show that plaintiff satisfied the contractual requirement for a minimum price, even under the modified agreement, to trigger Aaron Patel's obligation to pay the brokerage fee. See Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 82 A.D.3d 674; Giordano v. Berisha, 45 A.D.3d at 417; National Union Fire Ins. Co. of Pittsburgh, Pa. v. Sullivan, 269 A.D.2d 149 (1st Dep't 2000).

An unsworn, unauthenticated summary that Guerrieri again neither incorporates in his affidavit, nor lays a foundation for, indicates that the property was sold December 18, 2009, for $4.4 million to a buyer that plaintiff introduced to the property. People v. Mertz, 68 N.Y.2d 136, 147 (1986); Zuluaga v. P.P.C. Constr., LLC, 45 A.D.3d 479, 480 (1st Dep't 2007); Hollidav v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 396 (1st Dep't 2003). See IRB-Brasil Ressequros S.A. v. Portobello Intl.

Page 4

Ltd., 84 A.D.3d 637, 638 (1st Dep't 2011); Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471-72 (1st Dep't 2009). This summary also refers to an attached hearsay report showing an unspecified purchase date and price, which as described also would be inadmissible, and an attached deed to unspecified property dated December 18, 2009, and signed by Shaoul, but neither document is attached or presented elsewhere by plaintiff. Giordano v. Berisha, 45 A.D.3d at 417. Thus plaintiff's only evidence that even suggests its satisfaction of the contractual requirement to find a buyer that would purchase the property for a price acceptable to defendant seller is the unsworn, unauthenticated, hearsay summary, which is inadmissible and therefore hardly a basis for a default judgment. C.P.L.R. § 3215(f); Utak v. Commerce Bank, 88 A.D.3d 522, 523 (1st Dep't 2011); Mejia-Ortiz v. Inoa, 71 A.D.3d 517 (1st Dep't 2010); Giordano v. Berisha, 45 A.D.3d at 417; Beltre v. Babu, 32 A.D.3d 722, 723 (1st Dep't 2006). See Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 830 (2008); Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70-71 (2003); Al Fayed v. Barak, 39 A.D.3d 371, 372 (1st Dep't 2007).

III. DISMISSAL

A. The Substantive...