Motion Date: 4/7/11

Motion No.: 26

Motion Seq.: 3- - - - - - - - - - - - - - - - - - - x

The following papers numbered 1 to 7 were read on this motion by the plaintiff for an order pursuant to CPLR 3215 granting a default judgment against defendants PETER SAOULIS and KONSTANTMOUS HAZOZLOUS for an unpaid real estate commission in the sum of $27,250.00:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 3

Affirmation in Opposition-Affidavits-Exhibits........4 - 5

Reply affirmation....................................6 - 7

_________________________________________________________________

The plaintiff, Albert Nehmad, a licensed real estate broker, commenced this action by filing a summons and complaint on July 16, 2010. The underlying action is to recover a real estate broker commission due to the plaintiff from the sale of property located at 197-48 Jamaica Avenue, Queens County New York from the sellers Peter Saoulis and Konstantmous Hazozlous and Caldwell Banker Commercial NRT. [*2]

Defendant Coldwell Banker s/h/a Caldwell Banker held a listing and acted as broker of record for the sale which took place on November 3, 2009. Plaintiff alleges in his complaint that in January 2009, he learned that defendant-sellers, Saoulis and Hazozlous were interested in selling the property located at 197-48 Jamaica Avenue, Hollis, New York. The property consisted of 3,825 square feet of vacant land that was being leased to the United States Postal Service and used as a parking lot. Plaintiff approached the sellers and offered his services to assist in finding a buyer.

The sellers entered into a written agreement dated January 27, 2009, engaging plaintiff to open list the property for sale and agreeing to pay Nehmad a commission of five percent if he found a prospect ready, willing, and able to purchase the property. The agreement was executed by Nehmad, Saoulis and Hazozlous.

Based upon the agreement, plaintiff contends that he undertook efforts to find a buyer for the premises. In March 2009, plaintiff introduced the sellers to the eventual buyers of the property, Michael Saperstein and Mark Lamar. In November, 2009 the buyers, through a closely held limited liability company, Jamave LLC, purchased the premises for the sum of $545,000. The plaintiff alleges that he was not notified of the closing date and was not paid his five percent commission in the amount of $27,250. In his complaint, the plaintiff asserts causes of action for breach of contract, conspiracy to defraud and for a realtor's commission on a quantum meruit basis.

The plaintiff submits affidavits of service indicating that defendant Saoulis and Hazozlous were served by nail and mail pursuant to CPLR 308(4) on August 3, 2010. Neither Saoulis nor Hazozlous served an answer. On September 9, 2010, defendant Coldwell Banker moved to dismiss the complaint against Coldwell on the ground that Coldwell had no contract with the plaintiff which would entitle plaintiff to recover a commission from Coldwell. The contract of sale dated June 26, 2009 between Saperstein and Ramer as buyers, and Saoulis and Hazozlous as sellers, acknowledged at Article IX that both Coldwell and Albert Nehmad brought about the transaction. The contract stated that the Buyers would pay the commission to Albert (Nehmad) and the sellers would pay the commission to Coldwell. Coldwell received a commission of approximately three per cent from the seller in the amount of $18,500 at the time of the closing. The plaintiff did not oppose Coldwell's motion to dismiss the complaint.

By memorandum decision dated September 13, 2010, this court granted Coldwell's motion for an order dismissing the complaint against Coldwell without opposition. The Court directed Coldwell to settle an order. However, the order was never settled. By decision and order dated December 20, 2010, this court vacated [*3]the memorandum decision of September 13, 2010 based upon plaintiff's representations that he never received a copy of the motion.

Plaintiff now moves for a default judgment against Saoulis and Hazozlous on the ground that neither defendant served a timely answer to the summons and complaint. In support of his motion, the plaintiff submits documents indicating that the sellers signed a "open listing agreement" dated January 27, 2009 authorizing the plaintiff to show and sell the property in question in return for a five percent commission for finding a buyer. The plaintiff also submits correspondence indicating that he notified the sellers that he found an interested buyer known as Michael Saperstein. Saperstein initially authorized plaintiff to offer $350,000 for the property. Further correspondence indicates that Nehmad was involved in the negotiation of the sales price. However, plaintiff states that when the property was sold in November 2009 to Saperstein's corporation, he was not told about the closing and he did not receive a commission.

In opposition to the motion, counsel Thomas Berinato, Esq. submits an affidavit from Peter Saoulis dated March 8, 2011, stating that Saoulis and Hazozlous did not file an answer to the summons and complaint because they believed the case was dismissed in its entirety by this court's memorandum decision dated September 13, 2010 which granted Coldwell's motion to dismiss. Counsel also raises certain defenses, to wit, that the plaintiff failed to prove there was a contract with defendants to pay a commission and that the plaintiff failed to submit evidence that plaintiff procured the buyer or was involved in the negotiation of the sale price. In addition, the defendants claim that the contract of sale required the buyers to pay plaintiff's commission. Counsel states that they should be permitted to file an answer to the complaint at this time because they have a meritorious defense in that they are not responsible for the commission and a reasonable excuse for not answering, specifically, that they believed the action was dismissed in its entirety by this court's memorandum decision of September 13, 2010.

This court finds that the plaintiff demonstrated his entitlement to a default judgment against the defendant PETER SAOULIS and KONSTANTMOUS HAZOZLOUS by submitting proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendants' default in answering or appearing (see CPLR 3215[f]; Miterko v Peaslee, 80 AD3d 736 [2d Dept. 2011]; C & H Import & Export, Inc. v MNA Global, Inc. 79 AD3d 784 [2d Dept. 2010]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102 [2d Dept. 2009]). The affidavit of process server William P. Johnson, dated August 6, 2010, recites that defendants were served by nail and mail service at their [*4]respective residences on August 3, 2010 after they could not be served personally by due diligence. The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d 73 [2d Dept. 2008]; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457 [2d Dept. 2008]). Neither defendant has disputed that he was served with process.

This Court also finds that the defendants' failure to serve an answer because they believed the entire case was dismissed is not a reasonable excuse. The memorandum decision was based upon a motion by Coldwell to dismiss which was not joined in by defendants and clearly applies to the cause of action against Coldwell only. Moreover, the action was never actually dismissed against any defendant because Coldwell never settled an order and subsequently the memorandum decision was vacated by this court's decision dated December 20, 2010. In any event, the defendants, who were served on August 3, 2010 and were in default prior to the date of the courts decision on September 13, 2010. Further, the defendants claim that the contract of sale requires the buyers to pay Nehmad's commission is also without merit. The defendants cannot utilize the contract of sale, to which the plaintiff was not a party, to relinquish their obligation to pay the commission which they contracted to pay. The defendants may, however, have a cause of action for indemnity against the buyers.Therefore, this Court finds that the defendants have not submitted a reasonable excuse or a meritorious defense which would be sufficient to permit this court to vacate their default (see Central City Brokerage Corp. v Acosta, 49 AD3d 455 [1st Dept. 2008]).

Accordingly, for the above stated reasons it is hereby,ORDERED, that plaintiffs' motion for a default judgment against defendants, SAOULIS AND HAZOZLOUS in the amount of $27,250.00 plus appropriate costs and interest is granted.

Settle judgment on notice.

Dated: Long Island City, NY

June 10, 2011

______________________________

ROBERT J. MCDONALD

J.S.C.