From Casetext: Smarter Legal Research

Matherson Associates v. Calderone

Supreme Court, Appellate Term, Second Department
Dec 6, 2001
190 Misc. 2d 775 (N.Y. App. Term 2001)

Opinion

21562

December 6, 2001.

APPEAL from a decision dated April 26, 2000, deemed an appeal from a judgment (CPLR 5520 [c]), of the District Court of Suffolk County (Emily Pines, J.), entered June 14, 2000, in favor of plaintiff in the sum of $7,395, plus interest, costs and disbursements.

James T. Murphy, Floral Park, for defendants and third-party plaintiffs-appellants.

Bernard A. Nathan, Hauppauge, for respondent.

FLOYD, P.J., DOYLE and WINICK, JJ.


MEMORANDUM

Judgement unanimously reversed without costs and complaint dismissed.

Plaintiff, a licensed real estate broker and member of the Multiple Listing Service ("MLS"), instituted this action to recover its share of a commission allegedly due as the result of a sale of defendants' premises. Plaintiff alleged that it was the procuring cause of the sale as it was instrumental in creating an amicable atmosphere in which negotiations proceeded and/or generated a chain of circumstances that proximately led to the sale (see, Buck v. Cimino, 243 A.D.2d 681, lv denied 91 N.Y.2d 807). Plaintiff showed the premises to the ultimate purchasers who shortly thereafter entered into negotiations through the MLS listing broker. Defendants paid the entire commission due in accordance with the MLS agreement to the listing broker.

In order to state a direct claim for a commission, a broker must establish: (1) that it was duly licensed; (2) that it had a contract, express or implied, with the party charged with paying the commission; and (3) that it was the procuring cause of the sale (see, Greene v. Hellman, 51 N.Y.2d 197; Buck v. Cimino, supra; see also, Sibbald v. Bethlehem Iron Co., 83 N.Y. 378). In the case at bar, plaintiff failed to establish that it had a contract, either express or implied, with defendants. Defendants' sole agreement was with the listing broker. Said agreement allowed the listing broker to appoint other MLS member brokers as "Broker's Agents" to assist in the sale of the premises. In addition, the MLS listing agreement was "An Exclusive Right To Sell" which required defendants to pay the listing broker "one total commission in the amount of 6%. . . ." The agreement further provided that a sale by a broker who is the agent of the listing broker shall be a sale brought about by the listing broker. In view of the foregoing, it is apparent that plaintiff was acting as the "Broker's Agent" when it showed defendants' premises to the ultimate purchasers. Thus, plaintiff's claim for compensation due as a result of its efforts does not lie against the sellers.


Summaries of

Matherson Associates v. Calderone

Supreme Court, Appellate Term, Second Department
Dec 6, 2001
190 Misc. 2d 775 (N.Y. App. Term 2001)
Case details for

Matherson Associates v. Calderone

Case Details

Full title:GEOFFREY S. MATHERSON ASSOCIATES, LTD., Respondent, v. LOUIS CALDERONE, et…

Court:Supreme Court, Appellate Term, Second Department

Date published: Dec 6, 2001

Citations

190 Misc. 2d 775 (N.Y. App. Term 2001)
739 N.Y.S.2d 876

Citing Cases

Valdina v. Martin

We affirm. Even viewing the evidence in a light most favorable to plaintiff as the nonmoving party, the…

RWSP Realty, LLC v. Agusta

Rather, the defendants' sole contract was with the listing broker. The plaintiff's claim for compensation for…