Plaintiffs Omega Realty of Greenpoint LLC (Omega) and PDF Realty (PDF) move, pursuant to CPLR 3212, for an order granting summary judgment in their favor, and for dismissal of defendant's answer. Besides opposing the motion, defendant Jadwiga Ziemianovicz moves for dismissal of the complaint for failure to state a cause of action.

Plaintiffs, licensed real estate brokerage firms, brought this action alleging that they were engaged by defendant to act as buyer's broker, and are owed a commission as a result of defendant's purchase of real property located at 886 Manhattan Avenue, Brooklyn, New York. The complaint asserts three causes of action against defendant: (1) breach of contract; (2) quantum meruit; and (3) breach of the covenant of good faith and fair dealing.

For the following reasons, both motions are denied.

I.Background

At her deposition, defendant testified that she had used the services of at least three different real estate brokerages, including plaintiff Omega, approximately ten times in a ten-year period to obtain tenants for two multiple dwelling apartments she owned. See affirmation of Lucille Frumin (Frumin aff.), Ex. C (excerpted deposition transcript). In addition to these instances, in January 2010, defendant informed Malgorzata Zarska (Zarska), the principal of Omega, that she was in the market to purchase real property. Frumin aff., ¶ 9; affirmation of Z. Robert Janowski (Janowski aff.), ¶ 2. Omega sought to locate properties meeting defendant's criteria. Id. Omega introduced defendant to a property located at 1035 Manhattan Avenue, Brooklyn, New York, which is not the real property in dispute, and proceeded to negotiate an agreement between the defendant and seller. Id. That sale was never consummated and there is [*2]no dispute that a commission was not earned.

The following facts, however, are in dispute. Zarska claims that she subsequently introduced defendant to 886 Manhattan Avenue, the property at issue in this litigation, and that defendant signed a form binder agreement for this property. Frumin aff., Ex. E. The binder agreement, dated March 14, 2010 (Binder Agreement or Binder), contains defendant's name, a purchase price of $2.5 million payable in "cash" for the purchase of 886 Manhattan Avenue and 888 Manhattan Avenue. Id. In addition, plaintiffs assert that the Binder Agreement was signed by defendant. See affidavit of Malgorzata Zarska, sworn to August 15, 2012 (Zarska aff.), ¶ 4. There is additional information that is sought in the Binder but not filled out, including the deposit amount, and a date certain by when seller and purchaser would go to contract should the owner accept the price and the other terms set forth in the Binder Agreement.

As well, the Binder contains a provision that states: "IF THE PURCHASER HAS NOT SIGNED A FORMAL CONTRACT WITHIN 10 DAYS FROM THE DATE OF THE OWNER'S ACCEPTANCE OF THIS OFFER, THIS AGREEMENT IS VOIDABLE" (all caps in original). Frumin aff., Ex. E.

Sometime in October 2010, plaintiffs learned that defendant had purchased the 886 Manhattan Avenue property — but not 888 Manhattan Avenue, the other property referenced in the Binder Agreement — for $1,350,000. Plaintiffs brought the instant action to recover the commission they allege they earned as a result of their introduction of the property to defendant and the "many hours dedicated toward reaching an agreement between [defendant] and Seller so that defendant [could] own this property ...." Zarska aff.,¶ 5.

Now, plaintiffs seek summary judgment in their favor on the claims asserted in the complaint.

II.Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

In support of their motion, plaintiffs contend that the record demonstrates that they met all their contractual obligations under the Binder Agreement, entitling them to a commission for the purchase of the property, and that defendant breached the Binder by ultimately excluding plaintiffs from the transaction and not paying them commission. Plaintiffs also claim that they were the procuring cause of the transaction. As proof, plaintiffs submit evidence in the form of: (i) defendant's deposition testimony in which she acknowledges that she discussed the property at issue with Zarska;^[FN1] (ii) an affidavit by Malgorzata Zarska who attests, without providing any [*3]particulars, that she worked "countless hours" on procuring the subject property for defendant (Zarska aff., ¶ 3), (iii) the Binder Agreement; (iv) an e-mail chain which plaintiffs claim demonstrates that defendant was attempting to exclude them from the transaction to avoid paying a commission; and (v) the affidavit of Phil Phillipou, the seller's broker.

However, even if plaintiffs have made a prima facie showing, there are a significant issues of material fact raised by defendant that bar the requested relief. As an initial matter, defendant points out that the Binder Agreement is for the purchase of "888 Manhattan Avenue + 886 Manhattan Avenue." Because defendant purchased only 886 Manhattan Avenue — at an amount significantly lower than the price listed in the Binder for the purchase of the two properties together — defendant argues that there is a question of fact as to whether the Binder constitutes a valid agreement between defendant and plaintiffs with respect to a purchase of only one of the two properties listed in the Binder. In this regard, defendant asserts that an e-mail sent by her attorney, dated April 26, 2010, in which she changed the terms of the original offer reflected in the Binder Agreement (and which does not appear to have been accepted), demonstrates that she elected to exercise her option, pursuant to the Agreement, to void the Binder. See Janowski aff., Ex. B. As such, the court is persuaded that defendant has sufficiently demonstrated that there is an issue of fact as to whether the Binder Agreement was effective at the time she reached an agreement with the seller of the subject property.

Defendant also disputes plaintiffs' claim, based on the Zarska and Phillippou affidavits, that they were the procuring cause of the transaction. Although defendant acknowledged having more than one discussion concerning the subject property with Zarska, defendant denies, in her deposition testimony, receiving any assistance from Omega in researching details and negotiating for the subject premises. Defendant also testified that she first learned about the availability of the subject premises from one of her tenants and not from Zarska.

Given that it is not the court's role on a summary judgment motion to make credibility determinations, there remains triable issues of fact, precluding the court from granting the relief plaintiffs seek. See Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731 (2d Dept 2011) ("On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine" and "[a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact") (citation omitted).

Defendant's motion to dismiss the complaint for failure to state a cause of action, which does not put forth any argument as to the adequacy of the pleading, appears, at most, to be an afterthought. See Jankowski aff., ¶ 36. As the court deems the complaint sufficiently plead, the motion is denied.

Accordingly, it is

ORDERED that plaintiffs' motion for summary judgment in their favor is denied; and it is further [*4]

ORDERED that defendant's motion to dismiss the complaint for failure to state a cause of action is denied.



Dated: July 29, 2013

ENTER:

______________________J.S.C.