NEWMARK v. 2615 EAST 17 STREET

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Equivalent Citations

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Docket Number

Nos. 4042, 4042A.

Attorney(S)

Law Office of Lionel A. Barasch, New York (Lionel A. Barasch of counsel), for appellant. Sol Mermelstein, Brooklyn for 2615 East 17 Realty LLC, respondent. Arnold J. Ludwig, Brooklyn, for Wilk Real Estate I, LLC and Albert Wilk, respondents.

Judges

Peter Tom
John W. Sweeny
Helen E. Freedman
Rosalyn H. Richter

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Smart Summary

Factual and Procedural Background

This case arises from a breach of contract claim involving a lease transaction where the plaintiff broker, Newmark Company Real Estate Inc., alleged entitlement to a commission from the defendant landlord, 2615 East 17 Street Realty LLC. The lease involved a nonparty tenant, and the plaintiff broker was represented as the exclusive broker for the transaction. The Supreme Court of New York, New York County, initially denied the plaintiff's motion for summary judgment. The plaintiff appealed from this order and also from a separate order granting Wilk Real Estate I, LLC and Albert Wilk's motion to intervene.

Legal Issues Presented

Whether the plaintiff broker was entitled to its commission as a matter of law based on the parties' representations in the lease transaction.
Whether the defendant landlord’s claim that the brokerage commission provision was a scrivener's error could defeat the plaintiff’s entitlement to commission.
Whether the absence of the defendant’s signature on a separate brokerage agreement affected the enforceability of the commission agreement under the statute of frauds.
Whether email communications between the parties could satisfy the writing requirement of the statute of frauds to enforce the brokerage commission agreement.
Whether the motion to intervene by Wilk Real Estate I, LLC and Albert Wilk was properly granted or should be dismissed as academic.

Arguments of the Parties

Appellant's Arguments

The plaintiff broker was entitled to its commission because the lease clearly represented it as the exclusive broker and that the defendant would pay the commission.
The defendant’s claim that the commission provision was a scrivener’s error was not supported by the evidence and should be rejected.
The failure of the defendant to sign the separate brokerage agreement did not invalidate the agreement under the statute of frauds because email communications and other documentary evidence demonstrated mutual assent to the commission terms.
The emails exchanged, including the final version incorporating defendant’s handwritten revisions, constituted a valid writing and meeting of the minds sufficient to enforce the commission agreement.
The motion to intervene by Wilk Real Estate I, LLC and Albert Wilk was moot in light of the plaintiff’s successful motion for summary judgment.

Respondent's Arguments

The defendant landlord argued that the provision regarding the broker’s commission was a scrivener’s error and thus should not be enforced as written.
The defendant contended that the lack of a signed brokerage agreement precluded enforcement of the commission under the statute of frauds.
The defendant did not dispute authorship of emails but claimed that the commission provision was not properly agreed upon.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Morris Cohort Co. v Russell, 23 NY2d 569, 574-575	Broker’s entitlement to commission based on clear representation in lease documents.	Supported the court’s conclusion that the plaintiff was entitled to commission as a matter of law.
Helmsley-Spear, Inc. v New York Blood Ctr, 257 AD2d 64	Enforcement of brokerage commission agreements consistent with lease representations.	Reinforced the legal basis for granting summary judgment to plaintiff broker.
Edward S. Gordon Co. v Blodnick, Schultz Abramowitz, 150 AD2d 212, lv denied 74 NY2d 613	Rejection of scrivener’s error claims absent supporting evidence.	Supported rejection of defendant’s claim that the commission provision was a scrivener’s error.
General Obligations Law § 5-701 (b)(4)	Email communications can satisfy statute of frauds writing requirement.	Validated the use of emails as binding writings evidencing the brokerage agreement.
Stevens v Publicis S.A., 50 AD3d 253, 255-256, lv dismissed 10 NY3d 930	Emails may constitute enforceable writings under the statute of frauds.	Confirmed that the emails exchanged between the parties formed a valid agreement.
cf. Naldi v Grunberg, 80 AD3d 1, 13-14	Meeting of the minds demonstrated through written communications.	Supported the court’s finding of mutual assent to commission terms via emails.

Court's Reasoning and Analysis

The court analyzed the lease transaction and found that the plaintiff broker was clearly represented as the exclusive broker and entitled to the commission. It rejected the defendant's argument that the commission provision was a scrivener’s error, citing precedent that such claims require supporting evidence. Although the defendant did not sign the separate brokerage agreement, the court held that this was not fatal under the statute of frauds because a series of emails and documentary evidence demonstrated ongoing negotiations and mutual assent to the commission terms. The emails, including the final version incorporating the defendant’s handwritten revisions, constituted a valid writing under General Obligations Law § 5-701(b)(4) and relevant case law. The court found no evidence that the defendant rejected or protested the final agreement. Consequently, the court granted summary judgment in favor of the plaintiff broker for the principal amount of $124,415 plus interest. The appeal from the order granting intervention was dismissed as academic given the resolution of the main issue.

Holding and Implications

The court reversed the Supreme Court’s denial of summary judgment and granted the plaintiff’s motion, awarding the broker commission in the amount of $124,415 plus interest.

The court directed entry of judgment accordingly. The appeal from the order allowing intervention by Wilk Real Estate I, LLC and Albert Wilk was dismissed as academic, having no effect on the final outcome. This decision directly resolves the parties’ dispute over the broker’s commission but does not establish new precedent beyond affirming existing principles regarding brokerage commissions, scrivener’s error claims, and the enforceability of email agreements under the statute of frauds.

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NEWMARK COMPANY REAL ESTATE INC., Appellant, v. 2615 EAST 17 STREET REALTY LLC, Respondent, and WILK REAL ESTATE I, LLC, et al., Inter

In the lease between defendant, as the landlord, and nonparty tenant, which was brought into the transaction by plaintiff broker, the subscribing parties represented that plaintiff was the exclusive broker for the transaction and that defendant would pay its commission. This clear representation, which was supported by additional documentary evidence, entitled plaintiff to its commission as a matter of law ( Morris Cohort Co. v Rus-sell, 23 NY2d 569, 574-575; Helmsley-Spear, Inc. v New York Blood Ctr, 257 AD2d 64). We reject defendant's claim that the relevant provision does not mean what it says, but resulted from a scrivener's error ( see Edward S. Gordon Co. v Blodnick, Schultz Abramowitz, 150 AD2d 212, lv denied 74 NY2d 613).

Although defendant did not sign the separate brokerage agreement proffered by plaintiff setting forth the details of its commission, that fact is not fatal either under the statute of frauds or as to enforceability. Several e-mail communications, supported by other documentary evidence, reflected that plaintiff and defendant were in regular contact negotiating the lease and, when the parties appeared close to agreeing to the lease terms, plaintiff e-mailed defendant a draft brokerage agreement, setting forth, inter alia, the particular commission that had been discussed. Plaintiff invited defendant's revisions and defendant sent back, also by e-mail, handwritten revisions, which did not modify the commission, but only provided that it would be paid in specified increments. Plaintiff incorporated those revisions and sent the final copy back to defendant's agent, and the record contains no evidence that defendant objected to, protested, or rejected any of the provisions in the last version of the agreement.

An e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds ( see General Obligations Law § 5-701 [b] [4]; Stevens v Publicis S.A., 50 AD3d 253, 255-256, lv dismissed 10 NY3d 930). Defendant does not dispute its authorship of the e-mails, nor that they were sent by its agent, and contrary to defendant's claims, there is no evidence that it rejected the final e-mail sent by plaintiff, which incorporated defendant's revisions. The e-mail agreement set forth all relevant terms of the agreement, including the particular commission charged by plaintiff, and thus, constituted a meeting of the minds ( cf. Naldi v Grunberg, 80 AD3d 1, 13-14).

In view of the foregoing, plaintiffs challenges to the order granting the motion to intervene are academic.