Upon the foregoing papers, defendant Anthony Lucido moves for an order, pursuant to CPLR 3212, granting defendant summary judgment dismissing the complaint and awarding costs, disbursements and reasonable attorneys' fees. Plaintiff Robert Burton cross-moves for an order 1) striking defendant's answer for knowingly introducing false evidence into the record and 2) "enlarging plaintiff's time to file a CPLR 3126 (b) motion to strike defendant's Answer for bad faith conduct of both discovery and this entire case."

Plaintiff commenced this action to recover sums allegedly owed by defendant for a real property sales commission. In 2003, nonparty Colestar Properties, Inc. (Colestar) brokered the sale of defendant's property at 321 86th Street in Brooklyn, New York to Proti [*2]Realty, LLC. It is alleged that during the closing of the 321 86th Street property, defendant entered into an oral agreement with Colestar promising to pay a commission to Colestar if it sold another property located at 100 Marine Avenue in Brooklyn. Colestar was wholly owned by Alexander J. Skorupski. Sometime after the alleged broker's agreement was entered into, Colestar borrowed the sum of $20,000 from plaintiff. Repayment of the loan was governed by a certain promissory note dated January 28, 2004. The note provided that the loan shall become payable in full after three months, unless the term is extended in writing. The note also included the following clause:

4. Collateral for this Note: This Note shall be secured by 100% (one hundred percent) of the interest of New York State real estate broker Colestar Properties, which [Skorupski] represents is 100% owned by [Skorupski], in a $100,000 real estate brokers commission due Colestar from Vincent and Arthur Lucido [sic], of 6 Circle Road, Staten Island, New York 10314, in connection with their sale of 100 Marine Avenue, Brooklyn, New York to Peter Athenios of 8801 Ridge Boulevard, Brooklyn, New York 11209 [sic],^[FN1] and borrowers hereby assign to Lender 100% of their interest in said broker's commission as collateral for the loan secured by this Note.

Over several years following the commencement of this action, the parties engaged in discovery which included the examinations before trial (EBT) of plaintiff, defendant and Skorupski and the production of a real estate brokers' license effective during the time of the sale of 100 Marine Avenue. The license includes the name of Alexander J. Skorupski and the name and address of Colestar. A note of issue was filed on April 17, 2013.

Defendant presently seeks summary judgment dismissing the compliant on several grounds. Defendant argues that neither plaintiff nor Colestar is entitled to collect a commission from defendant because 1) neither entity is a licensed real estate broker 2) there was no broker's agreement between Colestar and defendant and 3) even assuming there was a broker's agreement, Colestar never actually earned a commission as it did not have any role in the sale negotiations. Defendant further contends that the commission cannot constitute collateral under article 9 of the UCC since it constitutes "an assignment of a claim for wages, salary, or other compensation of an employee" (UCC § 9-109 [d][3]) and because it constitutes "an assignment of accounts, chattel paper, payment intangibles, or promissory notes which is for the purpose of collection only" (UCC § 9-109 [d][5]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie showing requires a denial of the motion regardless of the sufficiency of the [*3]opposing papers (id.) The proof submitted to the court should be scrutinized carefully in the light most favorable to the party opposing the motion (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). It is not sufficient for the moving party to simply point to alleged deficiencies in the proof of the party opposing the motion (see Daries v Haym Solomon Home for Aged, 4 AD3d 447, 448 [2004]).

UCC article 9 "applies to . . . a transaction, regardless of its form, that creates a security interest in personal property . . . by contract" (UCC § 9-109 [a][1]). Turning first to defendant's argument that Colestar's commission is a form of compensation which cannot be pledged as collateral under UCC § 9-109 [d][3], this statutory provision expressly relates to "wages, salary, or other compensation of an employee." (Emphasis added). Colestar is a corporation wholly owned by Skorupski. Neither the corporation nor Skorupski was employed by or under the control or direction of another person or entity. Rather, Colestar was akin to an independent contractor, earning commissions directly from purchasers and/or vendors of real property. Accordingly, the court finds that the commission allegedly earned by Colestar from the sale of 100 Marine Avenue would not constitute compensation of an "employee" excluded from the provisions of UCC article 9.

Likewise, the court finds that the commission is not excluded under UCC § 9-109 [d][5] as "an assignment of accounts ... which is for the purpose of collection only." The purpose of this statutory provision to except from the UCC transfers that are not really financing transactions (see In re C.W. Mining Co., In re C.W. Mining Co., Adv. No. 09-2047, 2009 WL 2601246, *11 [Bankr. D. Utah Aug 24, 2009]). "This section of the UCC deals with a case in which a creditor sells its accounts or other intangibles to a collection agency not for the purpose of financing but for the purpose of collection" (id., citation and internal quotation marks omitted]). The commission was not assigned by Colestar to plaintiff to collect from defendant as repayment of the loan, but rather as a form of security for Colestar's repayment.

In an action to recover a real estate brokerage commission, the broker must establish: "(1) that he or she is duly licensed, (2) that he or she had a contract, express or implied, with the party to be charged with paying the commission, and (3) that he or she was the procuring cause of the sale" (Friedland Realty v Piazza, 273 AD2d 351, 351 [2000] see Ormond Park Realty v Round Hill Dev. Corp., 266 AD2d 523, 524 [1999] Buck v Cimino, 243 AD2d 681, 684 [1997]). "To establish that a broker was the procuring cause of a transaction, the broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation" (Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d 770, 773 [2013][internal quotation marks omitted] Hentze-Dor Real Estate, Inc. v D'Allessio, 40 AD3d 813, 816 [2007]). However, "a broker . . . does not automatically and without more make out a case for commissions simply because he [or she] initially called the property to the attention of the ultimate purchaser" (Greene v Hellman, 51 NY2d 197, 205 [1980]). Where the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that he created an amicable atmosphere in which negotiations proceeded or that he generated a chain of circumstances that proximately led to the sale (see Zere Real Estate Servs., 102 AD3d at 773; McNeill v Menter, 19 AD3d 1161, 1162 [2005] Buck v Cimino, 243 AD2d 681, 684 [1997]).

As an initial matter, plaintiff's failure to provide a fully supported counterstatement of disputed facts in opposition to defendant's motion for summary judgment, in accordance with rule 19-a of the Rules of Practice for the Commercial Division of the Supreme Court (22 NYCRR 202.70), does not require the court to deem defendant's statement of material facts admitted (Abreu v Barkin & Assoc. Realty, Inc., 69 AD3d 420, 421 [2010]). Provided there is sufficient evidence in the record to raise triable issues of fact, the court is not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in rule 19-a (id.).

In support of his motion for summary judgment, defendant submits the affidavit of Emmanouel O. Skountzos, who identifies himself therein as the managing agent of Proti Realty, LLC, the purchaser of 321 86th Street and the managing agent of Agras, the purchaser of defendant's [*4]property at 100 Marine Avenue. Defendant also submits, among other exhibits, Skorupski's EBT transcript.

In support of its argument that Colestar was not a licenced broker at the time of the sale of 100 Marine Avenue, defendant cites to a letter from the New York Department of State, Division of Licensing Services, dated May 29, 2007, indicating that there is no record of a real estate broker's license for Colestar from May 29, 2005 to the present. The letter stated, however, that records prior to said date had been destroyed. Thus, the letter from the Department of State cannot establish as a matter of law that Colestar did not possess a real estate broker's license when 100 Marine Avenue was sold in 2004. Defendant further cites to Skorupski's response at his EBT, when asked if "the real estate license [was his] and not Colestar's" that "[t]he brokerage license is mine." (Transcript of Examination Before Trial of Alex Skorupski, Jr. [hereinafter Skorupski EBT Transcript], p. 23). However, Skorupski further testified as follows:

MR. BURTON: I want to ask him if his license was valid between January 1st and June — say August 31st, 2004 for Colestar?

THE WITNESS: Yes. (Skorupski EBT Transcript, p. 24).

Defendant also argues that there was no agreement with Colestar entitling it to a real estate commission. Specifically, defendant argues that even if an agreement was entered into orally, the agreement is not enforceable as there was no meeting of the minds with respect to the amount of the commission to be paid to Colestar. With respect to the formation of the broker's agreement, Skorupski testified as follows:

Q. Did you enter into a real estate Broker Agreement with Mr. Lucido for the sale of 100 Marine Avenue?

A. To whom?

Q. At all. Just a general agreement.

Did you ever make an agreement with him to sell that building? Did you enter into an agreement to be his real estate broker for 100 Marine Avenue?

A. Yes. (Skorupski EBT Transcript, p. 52).

* * *

Q. What were the terms of the agreement?

A. Bring about a buyer ready, willing and able at a price that he was

comfortable with, and the terms, and we would move forward with it.

Q. What was the price that he was comfortable with?

A. In the six's. 6.3 [million] and up. (Skorupski EBT Transcript, p. 53).

* * *

Q. Did you ever discuss specifically what your commission would be?

A. It was the same — yes. We had a deal that it would be similar to thatof the one that sold on 86th Street, which I got paid for, which was 3 percent.

Q. You said it would be similar.

Did you say it would be exactly 3 percent?

A. Yeah, yeah, it was 3 percent.

Q. And that was agreed upon between the both of you?

A. Yeah. (Skorupski EBT Transcript, p. 55).

Despite the fact that Skorupski, in correspondence to the Skountzoses' attorney, wrote that he should receive "at least 1%" as a commission, and notwithstanding the different figures Skorupski represented as his commission in the complaint and promissory note, in light of his unequivocal testimony that he entered into an oral agreement with defendant to sell 100 Marine Avenue within a certain price range in consideration of a 3 percent commission, there is at the very least an issue of fact raised as to the existence of an enforceable oral broker's agreement between Colestar and defendant. Absent an agreement not to pay a commission, where a broker has performed as a broker and the seller has accepted the broker's services, an agreement to pay a commission will be implied even in the absence of an agreement regarding a commission (see Henri—Lyn Realty, Inc. v Huang, 159 AD2d 486 [1990]).

Finally, defendant argues that Colestar is not entitled to a commission as it was not the procuring cause of the sale. Skorupski provided the following testimony as to the circumstances of Colestar's involvement with the sale of 100 Marine Avenue:

Q. When did you hear that [100 Marine Ave.] was going on sale?

A. At the closing of 86th Street, when we were all at the table, it wasbrought up by.

Q. That he was going to sell that building?

A. He said, I still have another building. And I said to the Skountzoses,I said, Mr. Lucido, when you're ready to sell the building, we'll — bring it to the Skountzoses. That was the first mention of it was at that closing.

Q. That wasn't the first time that he indicated that I'm intending on

selling this building?

A. He said, when I'm ready I'll let you know. Then he let me know. I think it was months after that, he let me know that, cause he was not feeling well. He was having problems with his knee. I visited him in the hospital, Staten Island Hospital when he had his knee operated on. That's when he told me he wanted to sell it. Then I went to his house after that. (Skorupski EBT Transcript, pp. 37-38). [*6]

Skorupski testified that "maybe four months" after the closing of 321 86th Street, he collected the rent roll for 100 Marine Ave. at defendant's house and asked defendant if he "could bring the building to the same buyer." Skorupski testified that defendant replied "by all means" and Skorupski faxed over the documents to the Skountzoses. (Skorupski EBT Transcript, pp. 38-39). When asked what he did to sell the building, Skorupski replied that he cleared a violation that was on the building then created a "spreadsheet" of information about the building such as incoming expenses, rent roll and number of units and rooms in the building. Skorupski testified tht he sent the spreadsheet to the Skountzoses in late December 2003 or January 2004. (Skorupski EBT Transcript, pp. 42-44). Skorupski testified that he "got two buyers" for 100 Marine Avenue, the Skountzoses, "who circumvented [him] and bought the building" and another buyer "that was refused because [defendant] was already working on a deal with my buyer." (Skorupski EBT Transcript, pp. 54-55). When asked what he believed was the earliest date he thought he was due a commission, Skorupski answered:

The commission I believe I was entitled to was at the time when Mr. Lucido worked a deal with Mr. Skountzos and they agreed to sell the building. Mr. Lucido agreed to sell the building to Skountzos. After I sent the paperwork to Mr. Skountzos, he said he didn't want to buy it. Mr. Lucido was working on a deal privately. That's when I became entitled to a commission. When he negotiated a deal with that buyer behind my back, whatever was going on behind the scenes, that's when I was entitled to the commission, at that moment of truth. (Skorupski EBT Transcript, pp. 97-98).

In his affidavit, Emmanouel Skountzos states that sometime in the fall of 2003, he was advised by defendant of the availability of two properties, including 100 Marine Avenue. Skountzos states that this was the first time Agras became aware of the availability of the property. Skountzos states that in the following weeks, Agras met with defendant and negotiated the purchase. Subsequently, Colestar contacted Agras advising it of the availability of 100 Marine Avenue, which was the first time he heard from Colestar since the closing of 321 86th Street. Skountzos avers that he advised Colestar that they were aware of the availability of 100 Marine Avenue and, in fact, had already made a deal with defendant to purchase the property. Skountzos states that Colestar did not have any part in Agras' purchase of the property.

To reiterate, in order for a broker to succeed on a claim that he was wrongfully deprived of a commission from the sale of defendant's property, he needs to prove that he was the procuring cause of that sale; that is, he needs to prove that he was "a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction [of the buyer and seller] and the consummation [of the sale]" (Greene, 51 NY2d at 206). Simply "call[ing] the property to the attention of the ultimate purchaser" is insufficient to make out a case for a commission (Finley v Amyot, 285 AD2d 946, 948 [2001], quoting Greene, 51 NY2d at 205; Douglas, Payton & Co. v We're Assoc., 197 AD2d 559, 560 [1993]). However, the broker may be deemed the procuring cause of the sale if he or she created an amicable atmosphere in which negotiations proceeded or that he or she generated a chain of circumstances that proximately led to the sale (see Zere Real Estate Servs., 102 AD3d at 773).

The testimony of Skorupski is sufficient to raise an issue of fact as to whether Colestar was the procuring cause of the sale. There is no dispute that Colestar, through Skorupski, not only introduced defendant to the Skountzoses but brokered a deal between these individuals and/or their companies for the sale of 321 86th Street, thereby earning a commission for Colestar. There is also testimony that it was at the closing of this transaction when the topic of selling 100 Marine Avenue was first raised among defendant, the Skountzoses and Skorupski. This evidence is sufficient to demonstrate that Colestar's introduction of the Skountzoses to defendant was "the foundation upon which negotiations were begun and the [100 Marine Avenue] transaction was consummated" (Continental Realty, LLC v Kennelly Development Co., LLC, 19 Misc 3d 1140[A], 2008 NY Slip [*7]Op 51080[U], *3 [Sup Ct, Kings County 2008]) and that Colestar "created an amicable atmosphere in which negotiations proceeded" or "generated a chain of circumstances that proximately led to the sale." Clearly, there is an issue raised as to whether the sale of 100 Marine Avenue from defendant to the Skountzoses' company would have occurred had the parties not been brought together by Colestar for the sale of 321 86th Street and had Colestar not assisted in the sale and closing of said property. Moreover, Skorupski testified that after the topic of 100 Marine Avenue was raised, he was in contact with the Skountzos regarding the deal and devoted time and effort toward the sale by preparing and sending documentation to the Skountzoses regarding the property.

Accordingly, insofar as defendant's moving papers have not eliminated all issues of fact as to Colestar's status as a licensed real estate broker, the existence of a broker's agreement between Colestar and defendant and whether Colestar was the procuring cause of the sale, defendant's motion for summary judgment is denied in all respects.

Plaintiff cross-moves to strike defendant's answer on the ground that he perpetrated a fraud on the court by knowingly submitting false evidence. Contributing to "undisputed untruthfulness" on the record justifies imposition of sanctions under CPLR 3126 (317 West 87th Assocs. v Dannenberg, 159 AD2d 245, 245-246 [1990]). However, plaintiff does not identify any evidence submitted by defendant which is fictitious or fraudulent but merely challenges defendant's presentation and interpretation of the evidence, which plaintiff believes is incorrect or misleading. Insofar as there is no indication in the record that any of the evidence submitted by defendant is bogus or materially altered, plaintiff is not entitled to the striking of defendant's answer. Nor has plaintiff established entitlement to an order "enlarging plaintiff's time to file a CPLR 3126 (b) motion to strike defendant's Answer for bad faith conduct of both discovery and this entire case." As a result, plaintiff's cross motion is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.