DECISION AND ORDER INTRODUCTION This is a Small Claims action by Nicole Clark (“Plaintiff”) against Victoria Yankovoy d/b/a Taylor Hudson Real Estate (“Defendant”). The Plaintiff, in her Application to File Small Claims, alleged the Defendant failed to refund the real estate fee after the prospective landlord rejected the lease agreement for the Plaintiff to rent the property at 38 Wickham Avenue, Goshen, New York (“the Wickham Property”). As a result, the Plaintiff is seeking $1,800.00 in damages from the Defendant. The Defendant filed a counterclaim against the Plaintiff and alleged the Plaintiff owes the Defendant $1,900.00 for the real estate rental fee/commission owed for property the Plaintiff leased and occupied located at 15 Phillips Place, Goshen, New York (“the Phillips Property”). On April 2, 2021, the parties appeared in court for trial; the Plaintiff and the Defendant each appeared pro se. The Court conducted the trial and reserved decision after the trial. At the trial, the Plaintiff and the Defendant both testified under oath as did the Plaintiff’s witness, Roman Zawojski (“Zawojski”). The Plaintiff and the Defendant also submitted documentary evidence for the Court’s consideration. FINDINGS OF FACT The credible evidence at the trial showed the following: The Plaintiff and the Defendant, a licensed real estate broker,1 on October 9, 2019 entered into a “Rental Fee/Commission Agreement” by which the Plaintiff agreed to pay the Defendant “the commission/real estate rental fee amount equal to one (1) month’s rent for [the Defendant's] services for showing me/us and or referring me/us to any rental property which results in me/us leasing the property/signing a lease agreement and or occupying the rental property” (emphasis in original) (Defendant’s Exhibit E, in evidence). The Defendant worked with the Plaintiff in gathering the necessary information and submitting a rental application for the Wickham Property to the owners of that property, as detailed in various text messages exchanged between the parties and contained in Plaintiff’s Exhibit 3, in evidence (including a text from the Plaintiff to the Defendant on October 9th stating “I love the house — I think it’s perfect for me!” and another on October 10th stating “Thank you so much again for all your help!”). On October 11, 2019, the Plaintiff signed the lease for the Wickham Property (Plaintiff’s Exhibit 2, in evidence; according to the lease, the term was one year commencing November 1, 2019, and the monthly rent was $1,800.00 per month2). The Defendant transmitted the lease to the owners of the Wickham Property for their signature, and the Plaintiff deposited money into the owners’ account at Chase Bank for the security deposit and pet fee (Plaintiff’s Exhibits 3 and 5, both in evidence). The Plaintiff, also on October 11th, paid the Defendant the $1,800.00 commission due to the Defendant pursuant to the parties’ agreement, as shown in the receipt given by the Defendant to the Plaintiff (Plaintiff’s Exhibit 1, in evidence). On October 16, 2019, the Defendant sent a text to the Plaintiff indicating the Defendant reminded the owners of the Wickham Property to “scan and email the signed and dated lease to [the Defendant]” (Exhibit 3). The Plaintiff sent a text to the Defendant on October 19th, inquiring about the lease (Exhibit 3). On October 26, 2019, the Defendant reported to the Plaintiff that the father-in-law of one of the owners called the Defendant and “ said [the] executed lease will be back to us Monday or Tuesday. Thanks for your patience. I don’t understand why it took 2 weeks to get the lease back,” to which the Plaintiff responded “[t]hank you so much for being so on top of this for me” (Plaintiff’s Exhibit 3). On October 27, 2019, the Defendant reported to the Plaintiff that the Defendant “just picked up a hard copy of your fully executed lease…finally!” (Plaintiff’s Exhibit 3)3. The Plaintiff was supposed to move into the Wickham Property on November 1, 2019. That never happened. The Plaintiff and Ursula Rozov, a purported owner of the Wickham Property,4 exchanged a number of emails on October 29, 2019 and November 1, 2019 (Plaintiff’s Exhibit 4, in evidence; Defendant’s Exhibit D, in evidence). In those emails, Ursula Rozov alleged that the Defendant altered the signed lease causing the lease to be null and void. Ms. Rozov also alleged the Plaintiff’s rental application was not accurate. The Plaintiff disputed those claims; she stated her rental application was accurate and provided details, and she also stated her copy of the lease had no alterations. She also stated she “did not hire Victoria as an agent,” despite the fact the Plaintiff signed the agreement with the Defendant as described in Defendant’s Exhibit E. The Plaintiff, on November 1, 2019, indicated by email to Ursula Rozov that she had the executed lease in her possession and was ready to move in, but Ms. Rozov replied by email that same day that she was refunding the Plaintiff’s deposit and reiterated the “[l]lease is not valid as it was altered with white out by your broker after we executed” (Plaintiff’s Exhibit 4).5 The Rozovs refunded the Plaintiff’s rent and fee deposit via Zelle on November 23, 2019 and December 18, 2019 in the total amount of $2,065.00 (Plaintiff’s Exhibit E, in evidence). On October 29, 2019, after the first email from Ursula Rozov indicating they would not rent the Wickham Property to the Plaintiff because Ms. Rozov claimed the signed lease was null and void6, the Defendant sent text messages to the Plaintiff suggesting she contact Ms. Rozov and advise her that the Plaintiff was ready to move into the Wickham Property. The Defendant also provided information to the Plaintiff regarding the Phillips Property and indicated that property was available and pet friendly (Plaintiff’s Exhibit 3 and Defendant’s Exhibit B, both in evidence). The Defendant further stated she would contact “Linda” (apparently Linda Clark from Griffith Olivero Real Estate, the listing broker; the Defendant’s Exhibit A, in evidence, shows that Linda Clark, who apparently is not related to the Plaintiff, was the listing agent and Griffith Olivero Real Estate was the listing office for the Phillips Property) to schedule an appointment for the Plaintiff (Plaintiff’s Exhibit 3). At 2:51 p.m. on October 29, 2019, after the email from Ursula Rozov indicating they were canceling the lease agreement with the Plaintiff (Plaintiff’s Exhibit 4), the Defendant sent a text to Linda Clark, asking “Is your Goshen house rental for $1900.00 still available?” (Defendant’s Exhibit B, in evidence).7 Ms. Clark responded with a text at 3:03 p.m.: “Yes” (Defendant’s Exhibit B). The following text exchanges then occurred on October 29, 2019, as contained in Defendant’s Exhibit B: at 3:09 p.m., the Defendant stated “Thank you. I’ll call your office to schedule an appointment.” At 7:35 p.m., the Defendant stated “I have a scheduled appt with your office for tomorrow. By the way my clients names is [sic] Nicole Clark…I think she knows you…[emoji omitted]. For 15 Phillips Place Goshen house rental. Thank you. Victoria.” Ms. Clark immediately responded with “What time are you scheduled to show it? Tenant is leaving me another either tonight or tomorrow. We ll [sic] work something out. Yes I know Nicole if her Mom is Nancy Clark!!.” The Defendant, in a text to the Plaintiff at 7:31 p.m. on October 29, 2019 (received by the Plaintiff at 7:32 p.m.), followed up on the Defendant’s commitment to contact the broker regarding the Phillips Property. The Defendant noted in that text: “I have made appointments for you and I to view and referred you to the [Phillips Property] rental and also the rental at 2 Maple Avenue Goshen NY…. I have been in direct contact with the office and their agents this afternoon and Emma at the front desk. Let me know what time works for you tomorrow. These are both available pet friendly homes” (Plaintiff’s Exhibit 3; Defendant’s Exhibit B). The Defendant sent another text on October 30, 2019 at 2:18 p.m., stating “I can show you those 2 homes in Goshen this afternoon when you are off work. Both pet friendly. Let me know. Thank you” (Plaintiff’s Exhibit 3; Defendant’s Exhibit B). There was no evidence produced as to whether the Plaintiff toured the Phillips Property with the Defendant that day. However, the Defendant did produce evidence showing the Plaintiff apparently left a message for “Linda” on November 1st at 12:29 p.m. indicating she was interested in the Phillips Property rental, and the Plaintiff directly requested a tour of the Phillips Property through the Zillow Rental Manager site on October 31, 2019 at 9:45 p.m., with the message “I am available to tour: Tomorrow — afternoon or evening” (Defendant’s Exhibit C, in evidence). The Plaintiff, in her testimony, claimed that after the owners of the Wickham Property declared the signed lease “null and void,” she thought it was best not to work any further with the owners of the Wickham Property or the Defendant. The Plaintiff did not tell the Defendant she wasn’t going to work with her any further, and the Plaintiff testified she contacted Ms. Clark directly around October 31, 2019, after receiving text messages from the Defendant regarding the Phillips Property. The Plaintiff also testified that after the Wickham Property fell through, she and her boyfriend (Zawojski) decided to rent a property together (she was going to rent the Wickham Property on her own). The Plaintiff claimed that Zawojski started looking at other properties to rent before the Wickham Property fell through and that he mentioned the Phillips Property to her around mid-October 2019. She admitted on cross-examination, however, that Zawojski saw the listing for the Phillips Property some time after it was listed on October 24, 2019 (Defendant’s Exhibit A). Zawojski himself testified he believed he found information about the Phillips Property around the same day the Plaintiff was supposed to get the key to move into the Wickham Property; she originally was supposed to move in on November 1st. On November 11th, the Plaintiff sent the following text to the Defendant: “Hi Victoria. I hope you’re doing well. I am moving forward with renting another property. Please send me the $1800 realtor fee back as I did not rent the Wickham Avenue property through you or any other property. Thank you.” DISCUSSION “A real estate broker is entitled to recover a commission upon establishing that it (1) is duly licensed, (2) had a contract, express or implied, with the party to be charged with paying the commission, and (3) was the procuring cause of the transaction [citations omitted]” (Gluck & Company Realtors, LLC v. Burger King Corporation, 164 AD3d 562, 562-563 [2d Dept 2018]; accord Talk of the Town Realty v. Geneve, 109 AD3d 981 [2d Dept 2013]; Sutton & Edwards, Inc. v. 68-60 Austin Street Realty Corp., 70 AD3d 810, 810-811 [2d Dept 2010]). The plaintiff in Gluck & Company Realtors claimed it facilitated and was negotiating the terms of a lease of property to be used by a Burger King franchisee when the owner of the property terminated the plaintiff’s services after being asked to sign a commission agreement. The owner then entered into a lease with a Burger King franchisee and claimed the lease was negotiated by a different broker, not the plaintiff. The court found an implied contract between the owner and the plaintiff and determined the plaintiff was the procuring cause of the lease agreement. “In order to establish that it was the procuring cause of a transaction, a ‘broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation’ [citations omitted]” (Gluck & Company Realtors at 563). Furthermore, the court noted, “ [w]hile the plaintiff was not involved in the negotiations leading up to the completion of the deal between [the owner of the property] and [the Burger King franchisee], it established that it created an amicable atmosphere in which negotiations proceeded, and that it generated a chain of circumstances that proximately led to the transaction [citations omitted]” (id.; accord Talk of the Town Realty at 981-982 ["'a broker…does not automatically and without more make out a case for commissions simply because he [or she] initially called the property to the attention of the ultimate purchaser’ [citation omitted]. ‘Where, as here, the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that [it] created an amicable atmosphere in which negotiations proceeded or that it generated a chain of circumstances that proximately led to the sale’ [citations omitted]“). The court in Gluck & Company Realtors identified two other circumstances in which a broker could claim entitlement to a commission. The first could occur if other parties to a transaction exhibited bad faith. As the court stated, “[e]ven if the plaintiff were not the procuring cause of the transaction, it would still be entitled to recover a commission, as the evidence established that [the property owner] terminated the plaintiff’s activities in bad faith and as a mere last-minute device to escape the payment of the commission [citations omitted]” (Gluck & Company Realtors at 563). The second circumstance would occur to avoid unjust enrichment of a party. According to the court, even if there were no contract between a broker and another party, the broker “ would be entitled to recover for its services in quantum meruit in order to avoid the unjust enrichment of [the property owner] [citation omitted]. The plaintiff established that it performed services in good faith, that [the property owner] accepted the services, that it expected to be compensated therefor, and the reasonable value of the services [citations omitted]” (id.). There is no question that the Defendant expended a significant amount of time and resources to assist the Plaintiff in entering into a rental agreement for the Wickham Property. In fact, the Court finds the Defendant was the procuring cause for that agreement, and the Defendant’s efforts on the Plaintiff’s behalf resulted in a signed lease agreement for the Wickham Property (although one of the listed landlords did not sign it). Although the rental fell through, the credible evidence before the Court indicates neither the Plaintiff nor the Defendant was at fault. If anything, the owner of the Wickham Property may have been at fault in not going forward with the agreement on October 29 and November 1, 2019. Once the owners of the Wickham Property refused to go forward with the rental agreement, the Defendant used her best efforts to secure another rental for the Plaintiff.8 The Defendant brought the Phillips Property to the Plaintiff’s attention and made arrangements for the listing broker to show the Phillips Property to the Plaintiff. The Defendant also exchanged text messages with the Plaintiff about the Phillips Property as well as the listing broker to pave the way for the Plaintiff to rent the Phillips Property. While there is no indication the Defendant was directly engaged in negotiations between the Plaintiff and the owner of the Phillips Property,9 the Defendant appears at least to have created an “amicable atmosphere” (Gluck & Company Realtors at 563; Talk of the Town Realty at 982) for the negotiations to take place and the rental agreement to occur. The Plaintiff testified she signed a lease for the Phillips Property on November 13, 2019 but did not offer that lease into evidence.10 The Plaintiff also admitted she did not tell the Defendant she wasn’t going to work with her any further, and the Plaintiff admitted she contacted Ms. Clark directly around October 31, 2019, after receiving text messages from the Defendant regarding the Phillips Property Based on the language of the Plaintiff’s agreement with the Defendant (Defendant’s Exhibit E, in evidence), the Defendant seeks a commission for both the Wickham Property and the Phillips Property. The parties’ agreement states that a commission in the amount of one month’s rent was due from the Plaintiff “for showing me/us and or referring me/us to any rental property which results in me/us leasing the property/signing a lease agreement and or occupying the rental property” (bold in original). While the agreement in Exhibit E has no ending date and potentially could continue ad infinitum, the credible evidence shows the Defendant’s activities on behalf of the Plaintiff occurred over approximately a one month period. There can be no dispute the Defendant’s efforts resulted in the Plaintiff “signing a lease agreement” for the Wickham Property, and the credible evidence also shows the Defendant referred the Plaintiff to the Phillips Property and made other arrangements on the Plaintiff’s behalf which ultimately resulted in her signing a lease agreement and occupying the Phillips Property. While the Defendant could argue she is entitled to a commission for both the Wickham Property and the Phillips Property, under all the circumstances of this case11 and the open-ended language of the agreement between the Plaintiff and the Defendant, the Court determines it would be unjust for the Defendant to recover two commissions from the Plaintiff.12 Ultimately, the Defendant’s job under Exhibit E was to help the Plaintiff procure a rental property which the Plaintiff could occupy. When the Wickham Property fell through, the Defendant immediately went to work to find another property for the Plaintiff, and the Defendant found the Phillips Property for the Plaintiff. The Plaintiff, within approximately two weeks of the Defendant bringing that property to the Plaintiff’s attention, signed a lease for the Phillips Property and now occupies it. The Defendant did the job required under Exhibit E and found a place the Plaintiff could actually occupy. The Court, in this small claims action, must “do substantial justice between the parties” (Uniform City Court Act §1804). Based on the facts, evidence, and discussion above, and under the terms of the parties’ agreement in Exhibit E, it is the Court’s determination that “substantial justice between the parties” requires the Court to find that the Defendant is entitled to recover a commission equal to one month’s rent. The rental for the Wickham Property was to be $1,800.00 per month; the rental for the Phillips Property when the Plaintiff started occupancy was $1,900.00 per month (Defendant’s Exhibit A and Exhibit B, both in evidence). The Court determines that substantial justice would be served by awarding the Defendant one month’s commission in the total amount of $1,900.00. Because the Plaintiff previously paid the Defendant the sum of $1,800.00, which the Defendant has retained, the Defendant is entitled to recover a net amount of $100.00 from the Plaintiff. DECISION After hearing the testimony at the trial, giving appropriate weight to the testimony of the Plaintiff, the Plaintiff’s witness, and the Defendant, and reviewing all documentary evidence produced by the parties at the trial, it is ORDERED, that Plaintiff’s claim is denied and dismissed, and it is further ORDERED, that the Defendant’s counterclaim is granted in the amount of $1,900.00, and it is further ORDERED, that based upon the fact the Plaintiff previously paid the Defendant the sum of $1,800.00, which the Defendant has retained and may retain, judgment shall issue for the Defendant in the net amount of $100.00, plus costs. The foregoing constitutes the Decision and Order of this Court. Dated: June 7, 2021
