PJD CORPORATE REALTY INC v. LLC (2023)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered September 26, 2022, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint as against defendant Henry George School of Science (HGS), denied plaintiff's cross-motion to compel compliance with subpoenas directed to defendant HGS and defendant Douglas Elliman Real Estate, and granted HGS's and Douglas Elliman's motions to quash the subpoenas and for protective orders, unanimously reversed, on the law, without costs, the motion for summary judgment denied, the order vacated insofar as it granted HGS's and Douglas Elliman's motions to quash and denied plaintiff's cross-motions to compel, and the matter remanded for determination of the motions to quash and the cross-motions to compel.

HGS did not establish its entitlement to summary judgment dismissing the complaint as against it.  HGS cannot show that under either this Court's prior decision in this matter (PJD Corporate Realty Inc. v. Henry George Sch. of Social Science, 184 A.D.3d 440, 123 N.Y.S.3d 829 [1st Dept. 2020]) or other case law, a plaintiff broker's claim is viable only where a right to a commission from the seller has been formally secured in a retention agreement or by a separate contract.  Such a claim is viable where, as here, the only agreement is between the buyer's exclusive broker and the buyer, and the agreement provides that the broker will “look to” the seller for its commission.  Where the evidence suggests that a buyer failed to call a seller's attention to the identity of an exclusive broker, thus frustrating the broker's opportunity to look to the seller in order to secure its commission, that evidence is sufficient for a valid claim by the broker against the buyer for breach of an exclusive broker agreement.  Further, the commission that the seller paid to a third-party broker provides the basis, among other things, for measuring the potential damages recoverable by the buyer's exclusive broker on its claim (see Interactive Props., Inc. v. Doyle Dane Bernbach, Inc., 125 A.D.2d 265, 268, 509 N.Y.S.2d 806 [1st Dept. 1986], lv denied 70 N.Y.2d 613, 524 N.Y.S.2d 431, 519 N.E.2d 342 [1987];  Kaplon–Belo Assoc. Inc. v. Cheng, 258 A.D.2d 622, 622–623, 685 N.Y.S.2d 768 [2d Dept. 1999]).

Since the court's dismissal of the remaining claims was the basis for its quashing the subpoena, the reinstatement of plaintiff's claims against HGS requires further proceedings on the motions to quash and the motions to compel.