In September 2004, plaintiff Tamara Cohen, a licensed real estate broker, began showing apartments to Steven Galistinos, defendants Jerome and Jessica Seinfeld's estate manager. The Seinfelds were interested in renting several apartments to accommodate staff and family members. Eventually, the Seinfelds decided to purchase a brownstone instead and Galistinos asked Cohen to help them find a suitable brownstone. According to Cohen, she told Galistinos that her commission would be five or six percent, depending upon which townhouse the Seinfelds decided to purchase, and Galistinos agreed on behalf of the Seinfelds. Galistinos, however, claims that he did not reach a commission agreement with Cohen. See Galistinos Deposition, Plaintiff's Exhibit K, at p. 95.

In December 2004, Cohen became aware that 155 West 82nd Street in Manhattan (the subject premises) was advertised for sale. She spoke with Maximillan Sanchez, the listing broker for the subject premises, and according to Cohen, Sanchez told her that the commission on the townhouse was six percent and that he would be willing to co-broke the transaction with Cohen, each receiving three percent. At his deposition, Sanchez stated that he agreed to co-broke the transaction with Cohen (although they never had a formal written agreement), but he never told her that the commission was six percent. see Sanchez Deposition, Plaintiff's Exhibit I, at pp. 77-78, 130-31. The agreement that Sanchez had with the Mayeris (the owners of the subject premises) was that the commission would be five percent. Id at. 41, 47, 130. According to Cohen, she also told Sanchez that she could not show the premises on Friday evenings or Saturdays before sundown because she observed the Sabbath.

Sometime in January 2005, Cohen showed the subject premises to Galistinos; the sellers (defendants Mayeris) and Sanchez were also present. According to Cohen, Galistinos asked her about her commission, and she told him that it was six percent. On February 11, 2005, Cohen showed the subject premises to Jessica Seinfeld and Galistinos; as in January, the sellers and Sanchez were also present. According to Cohen, Jessica Seinfeld asked her how much would be her commission, and Cohen told her five or six percent, depending on the townhouse. She also told Jessica Seinfeld that the commission on the subject premises was six percent and that pursuant to the co-brokerage agreement that Cohen had with Sanchez, Cohen would receive thrree percent from the Seinfelds and Sanchez three percent from the Mayeris. Jessica, according to Cohen, agreed to the arrangement. Jessica Seinfeld, however, denied ever having a conversation with Cohen regarding her commission. See Jessica Seinfeld Deposition, Plaintiff's Exhibit H, at p. 105.

Since they were unable to see all the units in the subject premises because some of the tenant were not home, Ray Mayeri suggested that they schedule another meeting for a weeknight after 5:00 p.m. when the tenants would be available. Later that day, according to Cohen, Galistinos telephoned Cohen and told her that the Seinfelds were interested in the subject premises and wanted to see it again when they could have access to all of the units. Given Mayeri's suggestion, Cohen told Galistinos that she would try to arrange something for either Monday or Tuesday of the following week. Galistinos told Cohen to get in contact with Carolyn Liebling, Jerome Seinfeld's business manager, because he would be on vacation. According to Cohen, she reminded Galistinos that she observed the Sabbath. Cohen then telephone Leibling [*2]and left her a message that she would be attempting to schedule a visit for Monday or Tuesday. She also telephone Sanchez about arranging a visit for the following week.

On Saturday February 12 or Sunday, February 13, 2005, the Seinfelds went to the subject premises on their own and asked the Mayeris whether they could see the premises. After touring the premises, the Seinfelds agreed to purchase the premises for $ 3.95 million dollars. Sanchez was not present at this meeting. According to Jerome Seinfeld, he had attempted to contact Cohen for approximately 24 hours to no avail. Jerome Seinfeld Deposition at p. 57. Both Jerome and Jessica Seinfeld testified that they did not know that Cohen observed the Sabbath. Jerome Seinfeld Deposition at p. 101; Jessica Seinfeld Deposition at p. 24.

On February 13, 2005, after the Sabbath was concluded, Cohen checked her voice mail and learned that Galistinos had called to request that the Seinfelds be given access to the premises. Cohen called Sanchez, who confirmed that the Seinfelds and Mayeris had negotiated the deal, and then called Liebling, who told her that the Seinfelds would not be paying her a real estate commission. Cohen called Sanchez again who assured her that the Seinfelds had agreed to the six percent commission, that he was gong to receive three percent, and that Cohen would also receive three percent. Sanchez, however, testified at his deposition that the commission was five percent, but that the Mayeris gave him three percent nonetheless because they were pleased with his efforts. See Sanchez Deposition, Plaintiff's Exhibit I, at pp. 84-85. He also testified that he called Cohen and told her that the Seinfelds agreed to pay her commission, which he understood to be two and one half percent based on his agreement with the Mayeris. Id at 85.

Paragraph 27 of the sales contract confirms much of Cohen's claim. That paragraph states that the sellers will pay Sanchez's real estate broker's fee and "buyers will pay buyer's real estate broker's fees." See Plaintiff's Exhibit A. It is also undisputed that Sanchez received a commission of $118,500, three percent of $3.95 million. An e-mail from Jessica to Liebling seems to indicate, however, that the commission was five percent. The e-mail also had a handwritten notation by Leibling stating "realtor out" and "2 ½" was circled. According to Leibling, she wrote the words "realtor out" after speaking with Jessica who was very angry that Cohen had not returned any of her calls. Leibling Deposition, Plaintiff's Exhibit J, at p. 105. According to Jerome Seinfeld, he did not think that Cohen was entitled to a full commission because she was not available to show him the premises when he wanted to see it. Jerome Seinfeld Deposition, Plaintiff's Exhibit G, at p. 86.

Cohen commenced this action to recover her commission. She asserts two breach of contract claims (first and second causes of action against the Seinfelds and the Mayeris, respectively), quantum meruit (third cause of action) and fraud (fourth cause of action). The defendants moved for summary judgment dismissing the complaint, and Cohen cross-moved for partial summary judgment against the Seinfelds under the first and third causes of action.

Analysis

Defendants' motions for summary judgment dismissing the first, second and third causes [*3]of action are denied inasmuch as they have failed to establish their prima facie entitlement to summary judgment. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Contrary to the defendants contentions, plaintiff is a licensed real estate broker, see Plaintiff's Exhibit B, and as such may rely on an oral agreement in support of her claim for a brokerage commission. General Obligations Law § 5-701(a)(10). Andover Realty, Inc. v. Western Elec. Co., Inc., 100 AD2d 157, 161 (1st Dept. 1984), aff'd, 64 NY2d 1006 (1985). Moreover, the evidence clearly indicates that she served as the Seinfelds' real estate broker. See Jerome Seinfeld's Deposition, Plaintiff's Exhibit G, at p. 55. Indeed, she located several townhouses at Galistino's request, showed the premises in question to Galistino and Jessica Seinfeld on February 11, 2005, and made arrangements to have the Seinfelds see the premises the following week when all the tenants would be available for the Seinfelds to see each of the units. Last, paragraph 27 of the contract clearly provided that the sellers would pay Sanchez's brokers fees and the buyers (the Seinfelds) would pay the buyers' broker's fees. See Plaintiff's Exhibit A. These facts in combination with Sanchez's and the Seinfelds' deposition testimony establish that there was a co-brokerage agreement whereby plaintiff would receive one half of the broker's fee. The only real issue here, as far as the Court is concerned, is whether the broker's fee was five or six percent.

That portion of defendants motions which seek to dismiss the fourth cause of action based on fraud is granted. A fraud claim is not properly stated when the complaint merely asserts a general allegation that defendant entered into a contract while lacking intent to perform it. New York University v. Continental Ins. Co., 87 NY2d 308 (1995); 767 Third Ave. LLC v. Greble & Finger, LLP, 8 AD3d 75 (1st Dept. 2004).

For the reasons stated above, plaintiff's cross-motion is granted on liability against the Seinfelds with respect to her first cause of action. The matter will proceed to trial on the issue of whether the broker's fee was five or six percent.

This constitutes the Decision, Order and Judgment of the Court

Dated: January 2, 2007ENTER

______________________________

Rolando T. Acosta, J.S.C.