The following papers numbered 1 to 7 were read on this motion:

Plaintiff brings his motion seeking (1) summary judgment in his favor and a judgment against defendants in the amount of $238,000.00, plus interest from September 30, 2021; (2) summary judgment dismissing the counterclaim with prejudice; and (3) leave to make further application or submit further judgment for costs and attorney's fees.

This action arises out of a broker agreement entered between "WWK140 BAYRIDGE, LLC ('Seller'), and Besen & Associates ('Besen')." This contract states that after an initial period [*2]of 60 days, "it will thereafter be in effect for each consecutive monthly period until either one of the parties gives to the other 30 days written notice of cancellation." Defendants admit in their response to the Statement of Material Facts that they never served written notice of the cancelation of the contract, nor did Besen. The agreement provides that (unless expressly canceled) it "shall remain in force and binding upon all parties, including any of the Seller's entities, affiliates, partners, representatives, designees, successors and assigns, and shall not be modified, assigned and/or rescinded except if agreed to and changed in writing by both parties. The Seller agrees to identify Besen as the Broker of record in an [sic] consummated sales contract."

Defendants further admitted to the statement that "the Plaintiff's exclusive and irrevocable right to sell, net lease, or otherwise dispose of all or any portion of the Property under the Broker Contract was never disturbed through the sale of the Property." The agreement also contains an attorney's fees provision, which states in relevant part that the "prevailing party with respect to each specific issue in a matter shall be entitled to recover all of his or its costs and expenses relating to such issue (including without limitation, reasonable attorney's fees and disbursements). . . ."

Defendants also admit that the agreement means that "Plaintiff, as the sole broker, was entitled to a two percent (2%) commission (the 'Commission') to be paid upon inter alia when the Property is sold or ownership or control thereof is otherwise conveyed in whole or in part during the Term by Besen, Seller (WWK), or any other person or entity." (Emphasis added). Defendants further admit to the following: "Within approximately forty-five (45) days of the signing of the Broker Contract, Defendants entered into a contract of sale dated March 15, 2019 for the sale of the Property for the purchase price of $12,100,000.00 with ERLIS INC., an entity owned and/or controlled by Ernest Saasto (the "2019 Contract");" "Plaintiff is recognized as the sole broker in the 2019 Contract;" "This buyer, Mr. Saasto [sic] was procured by Besen."

There is no dispute that the 2019 Contract was never consummated. Defendants also admit that "On or about February 16, 2021, after a series of disputes between the seller and buyer, a new contract of sale was entered into for the Property between WWK, 'or its assignee William W. Koeppel, debtor in possession,' and METROPOLITAN PROPERTIES, INC. with a sale price of $11,900,000.00 (the '2021 Contract');" "METROPOLITAN PROPERTIES, INC. and 140 BRP, LLC are entities owned and/or controlled by Ernest Saasto;" "The 2021 Contract also recognized Plaintiff as the sole broker, with the Seller being obliged to pay the commission."^[FN1] Defendants state that "the Property was transferred to Koeppel as Debtor in Possession acting as agent of the Bankruptcy Estate." They further admit that "The Broker Contract had been in effect on September 30, 2021, and was not terminated or cancelled at any time prior," and that they have not paid any commission to plaintiff resulting from the 2021 Contract.

It has long been settled that "The proponent of a summary judgment motion bears the burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issues of fact. Only after this showing has been made does the burden shift to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material triable issues of fact. Moreover, to recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach. A written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms." Shulamith Sch. for Girls, Inc. v. Shulamith Sch. for Girls of Brooklyn, 230 AD3d 822, 823—24, 218 N.Y.S.3d 397, 398—99 (2d Dept. 2024). Although plaintiff has multiple causes of action (breach of contract, third party beneficiary and unjust enrichment), the Court examines only the breach of contract claim, as the others are duplicative.

Here, plaintiff has demonstrated that the parties entered into a contract which applied not only to the corporate seller, but also to Koeppel personally. The agreement provides that a commission is owed if the "Property is sold or ownership or control thereof is otherwise conveyed in whole or in part during the Term by Besen, Seller, or any other person or entity." (Emphasis added). It further provides that the agreement binds "all parties, including any of the Seller's entities, affiliates, partners, representatives, designees, successors and assigns." Koeppel is "any other person" as well as an affiliate, representative and assign. The 2021 Contract acknowledges this, stating that the seller is "defined as "WWK140 BAYRIDGE, LLC ('WWK) [sic], a New York limited liability company . . . or its assignee [sic] William W. Koeppel, debtor in possession ('Koeppel,' and together with WWK, the 'Seller')." The Bargain and Sale Deed lists the seller as "WILLIAM W. KOEPPEL, an individual, as debtor-in-possession, having an address at 5 East 57th Street, 105 Floor, New York, New York 10022."

There is also no dispute that the sale of the property occurred in 2021, albeit at a lower price than in the 2019 contract. This is essentially irrelevant (except that it reduces the commission amount), because there is no dispute that the broker agreement was not terminated and thus remained in effect. Further, there is no dispute that the ultimate purchaser was the same person behind the 2019 contract, although through a different entity. Indeed, the 2021 contract acknowledged that defendant owed plaintiff the commission, as it states that Besen is the broker, and that Seller, defendants herein, is the responsible party. This suffices to establish plaintiff's prima facie case.

In opposition, defendants state that "While the Defendants do not challenge the existence [sic] the Broker's Contract, the Defendants challenge Plaintiff's own performance and who would be liable for a breach under the Contract. . . . Defendant WWK was the only party to retain the services of Besen, as the contact clearly indicates. Defendant William W. Koeppel is disputing that he is liable to pay any commission under the Contract." Yet as set forth above, the agreement clearly obligated not only WWK, but also "any other person or entity," as well as "all parties, including any of the Seller's entities, affiliates, partners, representatives, designees, successors and assigns." It thus obligates Koeppel as well as the corporate entity. As "The sellers failed to raise a triable issue of fact in response," 410 Lefferts, LLC v. 408 Lefferts, LLC, 229 AD3d 439, 440, 215 N.Y.S.3d 127, 129 (2d Dept. 2024), the claim for breach of contract is granted. To the extent that defendants claim that "the actual purchase price that Saasto paid was well below the $11,900.000.00 price set forth in the 2021 Contract," "closer to $11,600,000.00 [*3]after adjustments in his favor," so that the commission should be based on the after-adjustment amount, the Court rejects this argument. The parties' contract does not allow for such adjustments. The Court finds this defense, along with defendants' other defenses, lacks merit.

Given that the Court has already awarded plaintiff the relief it seeks, it need not address the other causes of action since they seek the same relief. Accordingly, the Court grants plaintiff a judgment in the amount of 2% of $11,900,000, namely, $238,000. Plaintiff shall submit a proposed Judgment, on notice to defendants, to the Judgment Clerk, in the amount of $238,000, plus interest at the statutory rate from the date of entry of the Judgment.

Finally, the Court addresses plaintiff's claim for costs and attorneys' fees. The contract plainly provides that the "prevailing party with respect to each specific issue in a matter shall be entitled to recover all of his or its costs and expenses relating to such issue (including without limitation, reasonable attorney's fees and disbursements). . . ." Plaintiff may make a motion for costs and expenses, within 30 days of receipt of this Decision and Order. Plaintiff shall submit a proposed Order with such motion.

The foregoing constitutes the decision and order of the Court.^[FN2]