Upon the following papers numbered 1 to1-22read on this motion by the plaintiff and motion by the defendants for summary judgment; Notices of Motion/Order To Show Cause and supporting papers: 1-4; 5-9; Notice of Cross Motion and supporting papers:; Opposing papers 10-11; Reply papers 12-14; Other 15-16 (plaintiff's memorandum in support); 17-18 (plaintiff's memorandum in opposition); 19-20 (defendants' memorandum in support); 21-22 (defendants' reply memorandum); (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the motion (No.001) by the plaintiff for an award of summary judgment on its complaint in this action in which it seeks recovery of a broker's commission is considered under CPLR 3212 and is denied; and it is further

ORDERED that the separate motion (#002) by the defendants for summary judgment dismissing the complaint is considered under CPLR 3212 and is granted.

The plaintiff, a licensed real estate broker, entered into letter contract dated July 17, 2009 with an entity known as Catcove Corp., an apparent agent of the defendants, in which it retained the plaintiff as a broker, to market two tracts of land owned by the defendant, for sale in a single transaction (see Exhibit D attached to the plaintiff's moving papers). One tract was comprised of eight single and separate parcels on Flanders Road while the second was comprised of an undivided tract known as the Peconic River parcel. The purchase price was fixed in the letter agreement at $8,000,000.00, as was the brokerage commission of 6% of that purchase price. The term of the agreement was limited to 120 days from the date of the agreement. The letter agreement imposed upon the plaintiff an obligation to provide a list of clients to whom the properties had been shown. The letter agreement went on to provide the following language regarding termination: "This agreement will be in effect for 120 days from the date above. At the end of the term, we will either mutually extend the agreement or your firm should provide a written list to me of any actively interested purchasers and you will be protected for a period of one year thereafter should a closing take place with your registered client." It appears from the record that an initial list was furnished by the plaintiff following execution of the letter agreement that included the Nature Conservancy (see Exhibit D attached to the defendants' moving papers). A second list was furnished in January of 2013, following a prompt from the defendants (see id., see also Exhibit G attached to the plaintiff's moving papers). Among those newly added in the second list were The Peconic Land Trust and the County of Suffolk.

In the complaint filed herein, the plaintiff claims that prior to the expiration date of the agreement, the plaintiff introduced the defendants to the Acquisition Supervisor for the Suffolk County Department of Economic Development and Planning and to Randall Parsons, an advisor to the Nature Conservancy of Long Island [hereinafter "TNC"], a non-profit organization dedicated to conservation and land preservation. The plaintiff is alleged to have understood that [*2]TNC would act as an intermediary purchaser for the County of Suffolk, the ultimate purchaser of the subject land tracts, under a tax incentivized transaction known as a "bargain sale".

According to the plaintiff's moving papers, this type of transaction involves two sales by which a non-profit entity contracts to purchase real property from a seller, after which, the non-profit conveys the property over to an ultimate purchaser. The purchase price is fixed in the contract between the seller and the non-profit intermediary purchaser, although it is controlled by an offer of the ultimate purchaser and is generally well below the fair market value of the premises as determined by an appraisal commissioned at the expense of the seller. At the closing of this sale, the seller receives the below market purchase price set forth in the contract of sale between it and the non-profit intermediary purchaser together with a charitable deduction in an amount equal to the difference between the appraised fair market value and the tendered purchase price.

The plaintiff alleges that the defendants requested that the plaintiff continue its efforts to market the property following the November 14, 2009 expiration of the July 17, 2009 brokerage agreement and that it did so by focusing its efforts upon bringing the TNC and the County of Suffolk to terms with the defendants. By correspondence dated May 6, 2010, a principal of the plaintiff explained the anticipated two step process of a proposed bargain sale with the Nature Conservancy to the defendants as follows: "There will be two contracts. Your contract will be with the Nature Conservancy and they will have a contract with the County as contract vendee". The plaintiff goes on to explain that the Nature Conservancy will prepare its contract with the defendants and that "the County will prepare the contract between themselves and the Nature Conservancy" (see Exhibit E attached to the plaintiff's moving papers). It is not disputed, however, that no deal was ever consummated between the defendants and TNC or between TNC and the County of Suffolk prior to the expiration of the 120 day term of the brokerage agreement nor during the one year time period following such termination, during which, the plaintiff's brokerage commission was protected under the terms of the brokerage agreement.

Following the failure to come to terms with TNC or the County, the defendants are alleged to have directed the replacement of TNC with the Peconic Land Trust [hereinafter "PLT"], a non-profit organization similar to the TNC, who would serve as a substitute intermediary to a bargain sale culminating in County ownership. The County was allegedly not interested in paying the $8,000,000.00 purchase price for the parcels which the plaintiff suggested was too high but it was allegedly considering a partial purchase, so as to reduce that price. The defendants' agreement to such a sale is alleged to be evidenced by a writing dated August 2, 2010, in which, the plaintiff offers to reduce the 6% commission set forth in the July 17, 2009 agreement to 4%, even though the defendants never signed off on such proposal.

On September 21, 2010, a contract of sale between the defendants and PLT was entered into which provided for the sale of four of the eight parcels of the Flanders tract together with the Peconic parcel and the gifting by the defendants of the remaining four Flanders parcels to PLT. The purchase price was listed therein at $3,517,500.00. This contract closed on August 31, [*3]2011. One week thereafter, the PLT sold the premises to the County of Suffolk pursuant to a contract of sale entered into by it and the PLT in March of 2011 for $2,432,955.00. The plaintiff seeks recovery of 4% of the purchase price paid by the County of Suffolk, namely, $97,318.20, from the defendants under theories of contract law or under equitable remedies such as quasi contract or unjust enrichment. The plaintiff contends that it was the procuring cause of the ultimate sale to the County and thus earned its brokerage commission. By the instant motion-in-chief, the plaintiff seeks summary judgment on its complaint for recovery of the reduced 4% commission it proposed by writing dated August 2, 2010.

The defendants oppose the plaintiff's motion and separately move for summary judgment dismissing the plaintiff's complaint. The defendants contend that the plaintiff would have been entitled to a commission if a transaction between the defendants and the TNC (Nature Conservancy) had been brought to fruition. However, agreement on the terms of the sale by these parties never materialized during the term of the brokerage agreement nor during the one year period following the November 14, 2009 termination of the July 17, 2009 brokerage agreement. Nor was any sales transaction consummated between the defendants and the Peconic Land Trust (PLT) or the County of Suffolk during either of these contractual terms, as the sale to the PLT did not occur until August 31, 2011 and its sale of the land to the County of Suffolk under its separate contract therewith closed one week thereafter. Both sales thus occurred well beyond the November 14, 2009 termination of the defendants' obligation to pay the plaintiff a commission under terms of their agreement. According to the defendants, these circumstances, coupled with the fact that the consumated sales were negotiated by the defendants rather than by the plaintiff, allegedly render the plaintiff's demands for recovery of a commission non-actionable.

For the reasons set forth below, the plaintiff's motion-in-chief (#001) is denied while the defendants' separate motion (#002) is granted.

A broker is entitled to recover a commission upon establishing that it "(1) is duly licensed, (2) had a contract, express or implied, with the party to be charged with paying the commission, and (3) was the procuring cause of the transaction" (Zere Real Estate Serv., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d 770, 958 NYS2d 708 [2d Dept 2013]). "To establish that [*4]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" (Talk of the Town Realty v Geneve, 109 AD3d 981, 971 NYS2d 550 [2d Dept 2013]). This maxim is the result of the long standing rule that "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, 433 NYS2d 75 [1980]). "Where the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that [it] created an amicable atmosphere in which negotiations proceeded or that it generated a chain of circumstances that proximately led to the sale" (id., quoting Hentze—Dor Real Estate, Inc. v D'Allessio, 40 AD3d 813, 816, 836 NYS2d 265 [2d Dept 2007]; cf., SPRE Realty, Ltd. v Dienst, 119 AD3d 93, 986 NYS2d 92 [1st Dept 2014]).

Here, the moving papers of the plaintiff failed to demonstrate that it was the procuring cause of the sale to which it claims a commission, namely, the sale by the Peconic Land Trust to the County of Suffolk that closed on September 7, 2011, the payment of which the defendants are liable. While the plaintiff may have shared its expertise by suggesting the structure of a "bargain sale" as a means of selling the subject premises in a depressed commercial real estate market such as the one existing during the term of the brokerage agreement, the record is devoid of proof of any kind tending to establish that once the defendants replaced the Nature Conservancy with the PLT as a potential non-profit intermediary purchaser, the plaintiff brought together a deal agreeable to the defendants as sellers and to the PLT as purchaser and to its ultimate purchaser, the County of Suffolk. The court thus finds that the moving papers failed to establish a prima facie entitlement to summary judgment on the plaintiff's contractual claim for recovery of a commission under the terms of the written brokerage agreement, or as purportedly modified. Nor did the plaintiff establish an entitlement to recover the value of any services rendered under theories of unjust enrichment or quasi contract, as none of those claims were addressed in its moving papers. In any event, recovery under these theories is precluded by the existence of the express contract between the defendants, as purportedly modified, upon which the plaintiff relies in its moving paper and the plaintiff's election to proceed upon its pleaded contractual claim rather than any of these alternate and now inconsistent claims (see Unisys Corp. v Hercules Inc., 224 AD2d 365, 638 NYS2d 461 [1st Dept 1996]; Scarola Ellis LLP v Padeh, 116 AD3d 609, 984 NYS2d 56 [1st Dept 2014]; M/A-Com, Inc. v State, 78 AD3d 1293, 910 NYS2d 246 [3d Dept 2010]; Goldman v Simon Prop. Group, Inc., 58 AD3d 208, 869 NYS2d 125 [2d Dept 2008]). The plaintiff's motion is thus denied.

In contrast, the moving papers of the defendants established, prima facie, that the plaintiff was not the procuring cause of the sale by the defendants to the PLT. The defendants also demonstrated, prima facie, that they were not obligated to pay a commission under the terms of the letter agreement between them and the plaintiff, modified or not, due to the defendants' sale of the subject premises to the PLT which closed on August 31, 2011 or by reason of the PLT's subsequent sale of the subject premises to the County of Suffolk. The defendants thus established a prima facie entitlement to the summary judgment demanded by them in their moving papers. [*5]Upon its review of opposing submissions of the plaintiff, the court finds that it failed to rebut this prima facie showing of the defendants.

In view of the foregoing, the plaintiff's motion-in-chief (#001) for summary judgment on its complaint is denied while the separate motion of the defendants (#002) for that relief in its favor dismissing the complaint is granted.

Settle judgment.

Dated: December2014______________________________

THOMAS F. WHELAN, J.S.C.