Opinion
2013-05-9
Ellen ZEDECK, et al., Plaintiffs–Appellants, v. DERFNER MANAGEMENT INC., et al., Defendants–Respondents, Blair Hall, Inc., et al., Defendants.
Stroock & Stroock & Lavan LLP, New York (Ernst H. Rosenberger of counsel), for appellants. Kaye Scholer, LLP, New York (James D. Herschlein of counsel), for respondents.
Stroock & Stroock & Lavan LLP, New York (Ernst H. Rosenberger of counsel), for appellants. Kaye Scholer, LLP, New York (James D. Herschlein of counsel), for respondents.
ANDRIAS, J.P., SAXE, FREEDMAN, ROMÁN, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered January 14, 2013, which denied plaintiffs' motion for partial summary judgment and granted defendants-respondents' cross motion for partial summary judgment, unanimously modified, on the law, to deny the cross motion, and otherwise affirmed, without costs.
Regardless of whether the motion court erred by invoking law of the case, res judicata and collateral estoppel, we are not bound by those doctrines on this appeal ( see e.g. People v. Evans, 94 N.Y.2d 499, 503, 706 N.Y.S.2d 678, 727 N.E.2d 1232 n. 3 [2000];Matter of Mont Gardens v. Suffolk County Dept. of Health, 24 A.D.2d 599, 599–600, 262 N.Y.S.2d 216 [2d Dept. 1965] ). Accordingly, we reach the merits of whether defendant Derfner Management Inc. (DMI) was required to have a real estate broker's license pursuant to Real Property Law (RPL) § 440–a.
It is undisputed that, in exchange for a 7% commission, DMI negotiated leases and collected rents on behalf of the corporate plaintiffs. Hence, it would appear to fall under the definition of “real estate broker” in RPL 440(1). However, it has been held that RPL article 12–A, which includes sections 440 and 440–a, is “not broad enough ‘to cover ... every transaction in which an interest in real estate may be part of the’ ” transaction ( Reiter v. Greenberg, 21 N.Y.2d 388, 391–392, 288 N.Y.S.2d 57, 235 N.E.2d 118 [1968], quoting Weingast v. Rialto Pastry Shop, 243 N.Y. 113, 116, 152 N.E. 693 [1926] ). More recently, we have held that “[t]he statute is inapplicable where the collection of rent is incidental to responsibilities which fall outside the scope [of] brokerage services” ( Herson v. Troon Mgt., Inc., 58 A.D.3d 403, 403, 872 N.Y.S.2d 84 [1st Dept. 2009]; see Garber v. Stevens, 94 A.D.3d 426, 427, 941 N.Y.S.2d 127 [1st Dept. 2012] ).
The issue of whether a party's services fall under RPL article 12–A is one of fact ( see Dodge v. Richmond, 5 A.D.2d 593, 596, 173 N.Y.S.2d 786 [1st Dept. 1958]; see also Garber, 94 A.D.3d at 427, 941 N.Y.S.2d 127;Herson, 58 A.D.3d at 403, 872 N.Y.S.2d 84). Thus, the court correctly denied plaintiffs' motion for partial summary judgment. However, it should have also denied defendants-respondents' cross motion for partial summary judgment, and we disagree with the contention that the evidence currently in the record is sufficient to allow us to decide, as a matter of law, whether DMI's negotiation of leases and collection of rents were incidental to the non-RPL services that it provided.