Papers considered: 1. Notice of Motion to Dismiss Complaint, dated March 15, 2024; Affirmation of Andrew J. Entwistle, Esq., in Support, dated March 15, 2024; and Memorandum of Law in Support. 2. Notice of Cross-motion, designated as “Affidavit in Opposition to Defendants’ Motion to Dismiss and in Support of Plaintiff’s Prayer for Summary Judgment Pursuant to CPLR 3211(c)”, dated April 5, 2024; Affidavit of Michele L. Anderson, Esq., in Opposition and in Support, dated April 5, 2024, with Exhibit A; Affidavit of Annabel Taylor in Opposition and in Support, dated April 5, 2024, with Exhibits A-D; and Statement of Material Facts. 3. Reply Affidavit of Andrew J. Entwhistle, Esq., dated April 9, 2024; Defendants’ Statement of Material Facts. 4. Reply Affidavit of Michele L. Anderson, Esq., dated April 11, 2024, with Exhibit A. DECISION/ORDER In this action by Plaintiff, Four Seasons Sotheby’s International Realty, (“Four Seasons”), alleging breach of contract for failure to pay realtor’s commissions, the Defendants, 1083 Ashokan RD LLC, (“Ashokan”), 462 Mt Merino Rd LLC, (“Merino”), and Wander.com, Inc., (“Wander”), move to dismiss pursuant to CPLR §3211(a)(1) and (7). Four Seasons opposes and cross-moves for summary judgment in its favor. Defendants oppose the cross-motion. By Decision/Order dated June 4, 2024, the Court advised the parties that, pursuant to CPLR §3211(c), it intended to treat both motions as summary judgment motions and afforded them additional time for submissions. BACKGROUND Wander is the owner of Merino and Ashokan. On October 27, 2023, Merino entered into an exclusive right-to-sell listing agreement with Four Seasons for the sale of 462 Mount Merino Road, Hudson, NY, the “Merino Property”. The following day, Ashokan entered into an exclusive right-to-sell listing agreement with Four Seasons for the sale of 1083 Ashokan Road, Kingston, NY, the “Ashokan Property”. The exclusive right-to-sell listing agreement provides that Four Seasons is entitled to a commission even when the sellers find the eventual buyer, which is the situation here. The listing agreements both contained the following provision: “6. At the time of closing, you agree to pay us a commission equal to 5.5 percent of the sales price. If a sale is consummated through a co-broke arrangement the commission will be shared with the procuring co-broking office as hereby specified: (2.5) to a buyer’s agent; (0) to a broker’s agent; and (0) to a sub-agent if a participating Realtor member of the National Association of Realtors. If a non-participating Realtor member of the National Assoc, of Realtors: (2 percent) to a buyer’s agent; (0 percent) to a broker’s agent; and (0 percent) to a sub-agent. If listing agent represents both sides, commission will be reduced to 5 percent.” Andrew J. Entwhistle, Chief Legal Officer of Wander, and other employees of Wander met with prospective purchasers, Scott and Doreen Morehouse, Trustees of the Morehouse Family Trust, and began discussions about purchasing the Merino and Ashokan Properties. In November 2023, Wander introduced the prospective purchasers to Four Seasons, as Defendants’ listing agent. On or about January 23, 2024, the Morehouse Family Trust purchased the Merino Property for $2,250,000.00 and the Ashokan Property for $2,450,000.00. Four Seasons claimed entitlement to a 5 percent commission totaling $235,000.00. However, Defendants disputed that amount, paid $141,000.00 representing a 3 percent commission, which Defendants believed was correct, leaving $94,000.00 in dispute. Shortly thereafter, Four Seasons commenced this action. Entwhistle avers that he understood paragraph 6 of the listing agreement, the realtor’s fee provision, to mean that if there was no buyer’s agent, Defendants would owe Four Seasons a 3 percent commission. He asserts that he was surprised when, shortly before the closings, Four Seasons disclosed that it was acting as a dual agent. At no time did Four Seasons ever provide notice of dual agency as required by Real Property Law §443. Defendants further contend that a 5 percent commission constitutes “double-dipping” where there is no buyer’s agent who helped to bring a buyer to the table. Four Seasons avers that advance notice of dual agency was provided in writing as required by RPL §443 and that Entwhistle signed same. Four Seasons submits two forms signed by Entwhistle which state, “For advance informed consent to either dual agency or dual agency with designated sales agents complete section below.” This language is followed by two check boxes, one for “Advance Informed Consent Dual Agency” and the other for “Advance Informed Consent to Dual Agency with Designated Sales Agents”. For the sale of the Ashokan Property, only the box for “Advance Informed Consent Dual Agency” is checked. For the sale of the Merino Property, both boxes are checked, but the portion of the form where the names of the designated sales agents are supposed to appear is left blank. Entwhistle, who is an attorney, signed both of these forms. Four Seasons contends that, under the clear terms of the contracts, their fee is either 5.5 percent of the purchase price, when there is no co-broke arrangement, or 5 percent when there is a co-broke arrangement. Four Seasons asserts that it did act as dual agent for the buyers and sellers, and thus, it is entitled to a 5 percent commission. It contends that there is no situation in which the commission would be 3 percent, as the contract provides for either a 5.5 percent commission or a 5 percent commission. DISCUSSION/SUMMARY JUDGMENT STANDARD The proponent of a summary judgment motion must make a prima facie showing of entitlement of judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Failure of the moving party to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposition papers. Id., Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). “When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations. Furthermore, summary judgment can only be granted when the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party’s meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action” (American Food & Vending Corp. v. Amazon.com, Inc., 214 AD3d 1153, 1154-1155 [3d Dept., 2023]; Davis v. Zeh, 200 AD3d 1275, 1278 [3d Dept., 2021]; Stanhope v. Burke, 220 A.D.3d 1122, 1123 [3d Dept., 2023]). “[T]he essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach”. Carroll v. Rondout Yacht Basin, Inc., 162 AD3d 1150, 1151 (3d Dept., 2018); A.E. Rosen Elec.al Co., Inc. v. Plank, LLC, 181 A.D.3d 1080, 1081 (3d Dept., 2020). Here, Four Seasons has demonstrated the existence of a contract, its performance, Defendants’ breach, and damages. New York’s Real Property Law §443(3)(f) provides that a “seller…may provide advance informed consent to dual agency and dual agency with designated sales agents by indicating same on the form set forth in subdivision four of this section”. Four Seasons used the official form required by RPL §443(4)(a). Accordingly, Four Seasons did properly receive advance informed consent for its dual agency relationship from the Defendants. Accordingly, Four Seasons has demonstrated its entitlement to judgment as a matter of law, shifting the burden to Defendants to demonstrate an issue of fact. In opposition, Defendants assert that they never agreed to a dual agency with their specific buyers, whom they had found. They claim that specific notice and consent is required to establish a dual agency relationship, citing to cases which pre-date the 2011 amendment to RPL §443. However, Four Seasons is correct that, since the 2011 amendment, (L 2010, ch. 443 §§1-3), Real Property Law §443 allows a seller to consent in advance to dual agency. Furthermore, the Court finds the language of the exclusive right-to-sell listing agreements to be clear and unambiguous in providing for a 5 percent commission in this matter. The Court does not perceive Four Seasons to be “double-dipping”. There is no circumstance under either Contract in which Defendants would have to pay a commission of only 3 percent. Thus, Defendants have failed to raise an issue of fact. Accordingly, it is hereby ORDERED, that the motion by Defendants for dismissal of the Complaint is denied: and it is further ORDERED, that the cross-motion by Four Seasons for summary judgment is granted and the Court hereby awards judgment in favor of Four Seasons against Defendants in the sum of $94,000.00, representing the unpaid portion of its earned commission, and one bill of costs; and it is further ORDERED, that Four Seasons is directed to submit judgment within 30 days hereof. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations pursuant to CPLR §2220 regarding filing and entry of same, however that does not relieve the parties of their obligations regarding service of same with notice of entry thereon. Dated: July 29, 2024
