Capuder Fazio Giacoia LLP, New York (Alfred M. Fazio of counsel), for Charles Rutenberg, LLC, appellant, and Natalie Esposito, respondent.
Greenberg Freeman LLP, New York (Sanford H. Greenberg of counsel), for respondents/appellants.
ACOSTA, J.P., RENWICK, MOSKOWITZ, FEINMAN, GESMER, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about October 19, 2015, which, to the extent appealed from, denied plaintiff Charles Rutenberg, LLC's (Rutenberg) motion for summary judgment on its breach of contract claim, denied Rutenberg's CPLR 3211 motion to dismiss defendants' counterclaims and affirmative defenses, and granted Rutenberg and third-party defendant Natalie Esposito's (Esposito) motion to dismiss the third-party complaint against Esposito, unanimously affirmed, without costs.
The motion court correctly denied Rutenberg's motion, because defendants have adequately stated a counterclaim for breach of fiduciary duty, which, if successful, could defeat Rutenberg's right to a broker commission (see Douglas Elliman LLC v. Tretter, 84 A.D.3d 446, 448, 922 N.Y.S.2d 74 [1st Dept.2011], affd. 20 N.Y.3d 875, 955 N.Y.S.2d 851, 979 N.E.2d 1178 [2012] ; Brown Harris Stevens Residential Sales v. Oxford Capital Corp., 306 A.D.2d 112, 112, 759 N.Y.S.2d 876 [1st Dept.2003] ). To state a claim for breach of fiduciary duty, a plaintiff must allege that the defendant owed him a fiduciary duty, that the defendant committed misconduct, and that the plaintiff suffered damages caused by that misconduct (Burry v. Madison Park Owner LLC, 84 A.D.3d 699, 699–700, 924 N.Y.S.2d 77 [1st Dept.2011] ). As defendants' real lower price in reliance on Rutenberg's alleged false promise that it would not seek a sales commission.
The motion court correctly dismissed the third-party complaint against Esposito, as she was merely acting as an agent for Rutenberg, a disclosed principal, and there was no indication that she intended to be personally bound by the brokerage agreement (see JDF Realty, Inc. v. Sartiano, 93 A.D.3d 410, 410, 939 N.Y.S.2d 61 [1st Dept.2012] ).
We have considered the appealing parties' remaining contentions and find them unavailing.