RWSP LLC HOWARD HANNA RAND REALTY v. MARK SEIDEN REAL ESTATE TEAM (2026)

The following papers, numbered 1-4, were read and considered in connection with Plaintiff's Notice of Motion (Motion Seq. No. 1) for (1) an Order pursuant to Civil Practice Law and Rules § 3212 for Summary Judgment in favor of Plaintiff on Plaintiff's causes of action for breach of contract, as there are no material questions of fact as to whether Defendant breached the parties' Affiliation Agreement effective August 16, 2023, (2) an Order pursuant to Civil Practice Law and Rules § 3212 for Summary Judgment in favor of Plaintiff, dismissing all of Defendants' Counterclaims, as the documentary evidence proffered in this Motion establishes a complete defense to Defendants' Counterclaims, including without limitation, the terms of Affiliation Agreement with Plaintiff, and, (3) for any other relief that this honorable Court deems just and proper; and read and considered in connection with Defendant's Notice of Motion (Motion Seq. No. 2) for an Order pursuant to Civil Practice Law and Rules § 3212(e), (a) granting Defendant Seiden partial summary judgment on liability on that portion of the First Counterclaim for breach of contract relating to the payment of seventeen (17) commissions due and owing from Plaintiff pursuant to the terms of the parties' Affiliation Agreement; and (b) awarding Defendant Seiden a monetary judgment in the sum of $142,926.95, plus costs, attorneys' fees and interested calculated from the date each commission was due; or alternatively, that liability be granted in favor of Defendant Seiden and an inquest be scheduled solely to determine the amount of damages; and (c) awarding Seiden interest pursuant to Civil Practice Law and Rules § 5001, from the dates each commission became due, together with costs, disbursements and attorneys' fees in connection with this motion; and (d) such other, further and different relief as this Court deems just and proper in the circumstances:

PAPERS NUMBERED

Notice of Motion ( Motion Seq. No. 1)/Statement of Material Facts/ Affirmation of James M. Birnbaum, Esq./Affidavit of Matthew Rand/Exhibits A-J/Memorandum of Law in Support/Amended Notice of Motion 1

Notice of Cross Motion (Motion Seq. No. 2)/Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment/Affidavit of Mark Seiden/Exhibits 1-17/Affirmation of Alexander M. Jeffrey, Jr., Esq./

Statement of Material Facts 2

Affirmation of James M. Birnbaum, Esq.(Motion Seq. No. 2)/Memorandum

of Law 3

Alexander M. Jeffrey, Jr., Esq. (Motion Seq. No. 2) 4

Upon the foregoing papers, the motion and cross-motion are decided as follows.

FACTS

I. The Parties and the Affiliation Agreement

Seiden has been a licensed real estate agent since 1993, and in 1999 formed Mark J. Seiden Real Estate, Inc. d/b/a The Mark Seiden Real Estate Team (hereinafter "MSRT"), a team-model brokerage in Briarcliff Manor. See NYSCEF Doc No. 75, Seiden Aff. ¶¶ 5—7. Before the affiliation, MSRT had approximately eight agents (see NYSCEF Doc No. 55, Rand Aff. ¶ 6). Rand, a Rockland County brokerage, had tried to acquire MSRT in 2021 and resumed discussions in February 2023. See NYSCEF Doc. No 75, Seiden Aff. ¶ 10.

The parties signed an Affiliation Agreement (hereinafter the "Agreement") which was deemed effective August 16, 2023, with the transfer and assignment effective August 24, 2023. See NYSCEF Doc No. 56. Both sides were represented by counsel during the negotiations. See Agreement ¶ 6 [a]. The provisions within the Agreement at issue between the parties are:

• ¶ 1 (Transfer/Assignment). Seiden and MSRT assigned to Rand their affiliated licenses, active listings, commission receivables on signed contracts, and exclusive-right-to-sell agreements.

• ¶ 3 (a) (Price/Commissions)."In consideration for this Association," Rand would pay Seiden $400,000 in two $200,000 installments. Subparagraph (i) provides that agents presently associated with MSRT who move to Rand "will affiliate with HH RAND, subject to separate independent contractor agreements." Its next sentence, as amended by initialed handwritten annotations, provides that the "TEAM, including MARK SEIDEN individually," is entitled to an 80% starting commission split until $36,000 in company dollar is reached, and 90% thereafter; that a 6% resource fee is paid by "the TEAM" until $15,000 collectively plus $3,750 per agent is paid; that "[t]hese metrics must be reached every year"; and that agents pay stated monthly, per-transaction, and E&O fees.

• ¶ 3 (b) (i). Seiden "shall continue to pay for its own team marketing, events, and salaries of all its employed team members."

• ¶ 3 (b) (ii). Rand "shall provide training, technology, marketing and support services" and "will be committed to recruiting new SEIDEN team members at its discretion, and to assist in MARK SEIDEN's succession planning."

• ¶ 3 (b) (iii). Rand reserved "the right to transfer agents from its other branch offices" to the Briarcliff Manor office.

• ¶ 4 (Indemnifications). Reciprocal indemnities against losses arising from, among other things, a material breach of a party's representations, warranties or covenants, pre- or post-effective-date liabilities and taxes, and negligence.

• ¶ 5 (a) (Term of Agreement). Seiden agreed to keep his license associated with Rand for five years and, if "he voluntarily terminates his association" before then, to pay Rand "as liquidated damages a prorated portion of the $400,000.00 . . . based on the amount of days remaining in the aforementioned five (5) year period, calculated at a per diem rate of

$400,000.00 over five years, or $219.18 per day."

• ¶ 5 (b) (iv). Within the non-solicitation provisions, the parties "agree that they will be responsible for paying all of the other parties' costs in enforcing this Agreement, including reasonable attorney fees."

• ¶ 5 (c). A termination is not "voluntary" if Seiden is incapacitated or dies, and in that event none of the $400,000 is repayable.

• ¶ 6 (e)—(f). Section headings do not affect interpretation, and the Agreement, "together with any other documents referred to herein or delivered pursuant hereto," is the parties' entire agreement and supersedes all prior understandings.

II. The Independent Contractor Agreement and the Manual

On August 24, 2023, the day of a launch event at the MSRT office, Seiden signed Rand's form Independent Contractor Agreement. See NYSCEF Doc No. 61 [the "IC Agreement"]; See also NYSCEF Doc. No. 55, Rand Aff. ¶ 38; NYSCEF Doc. No. 75, Seiden Aff. ¶¶ 54—55. Paragraph 8 of the IC Agreement states that the sales associate has been given the opportunity to review Rand's Policy and Procedure Manual (the "Manual") and agrees to be bound by "the most recent version of the Manual published, so long as Sales Associate was given notice about the update or revision." See NYSCEF Doc. No. 61. Paragraph 9(a) of the IC Agreement provides that the association may be terminated by either party at any time and that termination is governed by the version of the Manual in place at termination. See NYSCEF Doc. No. 61. Rand's managing member, Matthew Rand, testified that the copy in the record was not signed on Rand's behalf, and that he did not know when it was given to Seiden or whether the Manual was ever handed to him. See NYSCEF Doc No. 89, Rand Tr. at 144—146, 155. The Manual excerpt Rand submits with the instant motion for summary judgment states it is the "Revised April 2024" version. See NYSCEF Doc No. 62. Its "Termination of Association" section states that termination "can be at any time by either party" and that, upon termination, "all commission fees due to the salespeople will be paid at a 65% base split." See NYSCEF Doc. No. 62, p. 2-3. Rand's managing member, Matthew Rand, testified that the April 2024 revision was the version in effect when Seiden terminated his association with the Plaintiff. See NYSCEF Doc. No. 89, Rand Tr. at 155. He could not say whether the 65% provision was discussed with Seiden, either before or after the Agreement was signed. See id at 161, 168—170.

III. The Affiliation between Plaintiff and Defendant and its Termination

During the affiliation, one agent, Aireen Craig, was added to MSRT. She was transferred from Rand's White Plains office and "shortly" after the transfer was "removed" from MSRT. See NYSCEF Doc. No. 75, Seiden Aff. ¶ 29; See also NYSCEF Doc No. 90, Renee Zurlo Tr. at 76.¹ Rand's managers had a goal of recruiting 12 agents per office per year for each of their offices. See NYSCEF Doc. No. 89, Rand Tr. at 32; See NYSCEF Doc. No. 90, Zurlo Tr. at 22. Rand's written policy barred recruiting from one Rand office to another, but Rand's regional executive, Renee Zurlo (hereinafter "Zurlo"), testified that she made an exception for MSRT. See NYSCEF Doc. No. 90, Zurlo Tr. at 92. At an unknown time after the parties entered into the affiliation in early 2024, Rand replaced the branch manager assigned to the MSRT office, Phil Faranda, with Jerome Jeffrey. See NYSCEF Doc. No. 89, Rand Tr. at 32-33.

By February and March 2024, based upon emails, Seiden was complaining that no agents had been added. See NYSCEF Doc Nos. 80, 81. Rand's managing member, Matthew Rand, offered $25,000 "towards conversion costs" and a further $25,000 if recruiting did not produce results within several months. See NYSCEF Doc. No. 89, Rand Tr. at 93—98.² On June 25, 2024, Seiden gave written notice that he would not enter the second year and intended to end the affiliation as of August 31, 2024, and that he would work with his attorney "to calculate how much of a reimbursement is owed" under the contract. See NYSCEF Doc No. 82.³ On June 27, 2024, he wrote that the parties should proceed on the basis that August 31, 2024, would be the cancellation date, "with me supplying a check to you to 'buy-out' " the contract. See id. Both emails attributed Seiden's decision to end the affiliation on Rand's failure to recruit agents and to advance his exit strategy. See id.

The effective date of termination is disputed. Rand says August 21, 2024. See NYSCEF Doc No. 53, Statement of Material Facts ¶ 17; Defendants say August 11, 2024. See NYSCEF Doc No. 94, Counter Statement of Material Facts ¶ 27. As a result of the termination of the affiliation, Rand demanded $322,413.78 under ¶ 5 (a), and Seiden refused payment. See NYSCEF Doc. No. 55, Rand Aff. ¶¶ 14—15.

IV. Commissions Alleged to be Owed to Seiden Post-Termination of Affiliation

It is undisputed by the parties that seventeen (17) MSRT transactions closed between August and December 2024. See NYSCEF Doc. No. 75, Seiden Aff. ¶¶ 38—39. Rand initially withheld the commissions "on account of our dispute." See NYSCEF Doc. No. 55, Rand Aff. ¶ 34. After this action was commenced and the counterclaims were served (and on "further reflection"), Rand sent sixteen (16) checks in December 2024 and a seventeenth (17th), for $8,531, on May 8, 2026 "in full and final satisfaction of any sums allegedly due." See NYSCEF Doc. No. 55, Rand Aff. ¶ 34; See also NYSCEF Doc Nos. 58, 60. Fourteen (14) checks were computed at a 65% split, and two (2) carried deductions of $14,992.30 for "personal assistant" charges and $569.28 for E&O and marketing fees. See NYSCEF Doc No. 58; See also NYSCEF Doc. No. 75, Seiden Aff. ¶ 41. Rand's schedule totals the seventeen (17) checks at $74,117.67. See NYSCEF Doc No. 58; See also NYSCEF Doc. No. 55, Rand Aff. ¶ 36). Seiden returned the sixteen (16) checks on January 7, 2025, and holds the seventeenth (17th) in escrow. See NYSCEF Doc No. 85; See also NYSCEF Doc. No. 75, Seiden Aff. ¶ 45. He contends that $142,926.95 is due under ¶ 3 (a) (i) of the Agreement. See NYSCEF Doc. No. 75, Seiden Aff. ¶ 41.

PROCEDURAL HISTORY

Rand commenced this action on September 15, 2024, asserting causes of action for breach of contract and unjust enrichment. See NYSCEF Doc No. 1. Defendants answered on October 22, 2024, asserting eighteen (18) affirmative defenses and four (4) counterclaims: breach of contract, unjust enrichment, fraudulent inducement, and indemnification. See NYSCEF Doc No. 15. Rand replied to the counterclaims in a Verified Answer. See NYSCEF Doc No. 19. Depositions were taken of Seiden, Matthew Rand, Renee Zurlo, Nicholas Germak and Phil Faranda. See NYSCEF Doc. Nos. 89-92. These motions followed.

DISCUSSION

The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; See also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]. Failure to make that showing requires denial regardless of the sufficiency of the opposing papers. See Winegrad, 64 NY2d at 853. If the showing is made, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to require a trial. See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. Mere conclusions and unsubstantiated assertions are insufficient. See id.

The evidence is viewed in the light most favorable to the non-moving party, and the court's function is issue-finding, not issue-determination. See Vega v Restani Constr. Corp., 18 NY3d 499, 503, 505 [2012]; See also Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]. The interpretation of an unambiguous contract, and whether a provision is an enforceable liquidated damages clause or an unenforceable penalty, are questions of law for the court. See Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; See also JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 379 [2005].

Summary judgment may be granted on a cause of action "or part thereof." See Civil Practice Law and Rules § 3212 [e]). Where the only triable issues relate to the amount of damages, the court may direct a trial of those issues. See Civil Practice Law and Rules § 3212 [c]). Where the motion is not granted in full, the court may specify the facts that appear to be without substantial controversy and deem them established for trial. See Civil Practice Law and Rules § 3212.

I. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (MOTION SEQ. NO. 1) ON BREACH OF CONTRACT CLAIM

The branch of the Plaintiff's motion seeking judgment of $322,413.78 is DENIED, but several issues are resolved as a matter of law. To recover for breach of contract, a plaintiff must establish the existence of a contract, its own performance, the defendant's breach, and resulting damages. See JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]. The Agreement's existence is undisputed. The motion turns on three (3) questions: whether ¶ 5 (a) of the Agreement is enforceable, whether Seiden's departure triggered it, and whether Rand has shown its own performance and its damages.

A. Paragraph 5 (a) of the Agreement is a liquidated damages provision

A liquidated damages clause is enforceable if the amount bears a reasonable proportion to the probable loss and the actual loss is incapable or difficult of precise estimation. See Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425 [1977]. It is an unenforceable penalty only if the amount is "plainly or grossly disproportionate to the probable loss." See id.; 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 536 [2014]. The party seeking to avoid the clause bears the burden of proving it is a penalty. See JMD Holding Corp., 4 NY3d at 380; See also Bates Adv. USA, Inc. v 498 Seventh, LLC, 7 NY3d 115, 120 [2006]. The question is judged as of the time of contracting. See Truck Rent-A-Ctr., 41 NY2d at 425.

Defendants have not carried that burden. When the Agreement was signed, Rand could not have estimated with precision what it would lose if Seiden left early. That loss depended on the future production of a team whose size and output would change, on the value of the listings and receivables transferred under ¶ 1 of the Agreement, and on the costs of integrating and later unwinding the team. The clause does not fix an arbitrary sum. It returns only the unearned portion of Rand's own up-front payment, declines day by day as the term runs, and can never exceed what Rand paid. A provision that measures the loss by the unexpired share of the consideration paid for a term of service bears a reasonable proportion to the probable loss.

Defendants' remaining arguments fail. First, ¶ 3 (a) of the Agreement describes the $400,000 as consideration "for this Association," but the association bargained for was a five (5) year association. See NYSCEF Doc. No. 56, ¶ 5 [a]. Reading the two (2) provisions together, the payment bought five (5) years, and ¶ 5 (a) returns the share not delivered. That reading gives effect to both provisions and renders neither meaningless. See Beal Sav. Bank v Sommer, 8 NY3d 318, 324—325 [2007]. Second, that some of Rand's later operating costs may be calculable does not show that the value of the team's lost future business was readily ascertainable in August 2023. Third, the parties were represented by counsel (see NYSCEF Doc. No. 56, ¶ 6 [a]), and the per diem formula was negotiated. See NYSCEF Doc. No. 89, Rand Tr. at 157—159. Seiden's own June 25, 2024, notice stated that he would work with counsel "to calculate how much of a reimbursement is owed." Because no reasonable doubt exists on this record, the rule that doubt is resolved in favor of a penalty construction (see Vernitron Corp. v CF 48 Assoc., 104 AD2d 409 [2d Dept 1984]) does not apply.

B. Seiden's departure was "voluntary" within the meaning of ¶ 5 (a)

Defendants argue that a jury should decide whether Seiden's departure was "voluntary" or was compelled by Rand.⁴ The Agreement answers the question. Therefore, a jury is not needed to decide this question. Paragraph 5 (c) identifies the circumstances in which a termination is not "voluntary": Seiden's death or incapacity. Read with ¶ 5 (c), "voluntarily terminates" as used in ¶ 5 (a) refers to a departure by Seiden's own election, as opposed to one caused by death or incapacity. Seiden's contemporaneous emails show that he chose to end the affiliation, picked the date, and proposed a "buy-out." See NYSCEF Doc No. 82. That he did so because he was dissatisfied with Rand's performance does not make the departure involuntary within the meaning of the contract.

Defendants' real point is different: that Rand's own prior material breach excused Seiden's obligation to repay. That defense is pleaded (Answer, Eighth and Eighteenth Affirmative Defenses) and is addressed next.

C. Triable issues exist as to Rand's own performance

Paragraph 3 (b) (ii) of the Agreement imposed obligations on Rand. It "will be committed to recruiting new SEIDEN team members at its discretion, and to assist in MARK SEIDEN's succession planning." NYSCEF Doc. No. 56. The Court construes the clause as follows. The words "at its discretion" give Rand latitude in how, when and whom to recruit. The clause promises no number of recruits, and the merger clause (see NYSCEF Doc. No. 56, ¶ 6 [f]) bars proof of a pre-contract understanding that it would add a minimum number. But "at its discretion" does not turn the commitment into an illusory one. Where a contract contemplates the exercise of discretion, it includes a promise not to act arbitrarily or irrationally in exercising it. See Dalton v Educational Testing Serv., 87 NY2d 384, 389 [1995]. Defendants' contention that the clause is so indefinite that there was no meeting of the minds is rejected. Both parties performed under the Agreement for a year, and both now seek to enforce it.

Whether Rand honored that commitment is a question of fact. Rand points to recruiting calls, emails and meetings, the replacement of the branch manager, and the addition of Ms. Craig. See NYSCEF Doc. No. 55, Rand Aff. ¶¶ 11, 21—23. Defendants point to evidence that in a year, Rand added one agent (transferred from another Rand office); that no agent from outside Rand was presented for an interview; that Rand's own goal was twelve (12) recruits per office per year; and that Rand's policy otherwise barred the intra-company transfers its personnel described during negotiations as a "no-brainer." See NYSCEF Doc. No. 75, Seiden Aff. ¶¶ 15, 26—34; See NYSCEF Doc. No. 55, Rand Tr. at 32, 104; See NYSCEF Doc. No. 90, Zurlo Tr. at 22, 76, 92. In March 2024, Rand's regional executive wrote to Seiden acknowledging the "promise for recruiting" and that Rand "now ha[d] the right recruiter in place." See NYSCEF Doc No. 80. Rand's managing member testified that Rand did everything the Agreement required and characterized the recruiting dispute as "meaningless." See NYSCEF Doc. No. 55, Rand Tr. at 149, 152. Much of Rand's affidavit on this point is general and does not describe recruiting directed at MSRT. Whether Rand's efforts were a good-faith exercise of its discretion turns on credibility and the weight of competing evidence, which cannot be resolved on this motion. See Vega, 18 NY3d at 505.

The same is true of materiality. A breach excuses the other party's performance only if it is so substantial that it defeats the object of the parties in making the contract. See Hadden v Consolidated Edison Co. of NY, 34 NY2d 88, 96 [1974]. Seiden's evidence is that recruiting was his principal reason for affiliating, and both his June 2024 emails and Rand's March 2024 correspondence treat it as central. Rand's managing member testified that the $400,000 repayment obligation was the reason Rand insisted on a written agreement at all. See NYSCEF Doc. No. 55, Rand Tr. at 149—152. Whether any breach by Rand went to the root of the bargain is for the trier of fact.⁵

D. Rand Has Not Established the Amount It Claims

Independently, Rand has not established its damages. Paragraph 5 (a) fixes the payment at $219.18 per day remaining in the five (5) year term. Rand's figure, $322,413.78, equals 1,471 days. Rand alleges that Seiden terminated effective August 21, 2024, but only 1,456 days remain from that date to August 16, 2028, which yields $319,126.08. Rand offers no computation reconciling its demand with its own termination date, and defendants assert a different date. The termination date and the resulting amount are for trial.

II. PLAINTIFF'S MOTION TO DISMISS THE COUNTERCLAIMS (Motion Seq. 1)

The branch of the motion seeking dismissal of the counterclaims is GRANTED IN PART. The First Counterclaim survives in part; the other three (3) are DISMISSED.

A. First Counterclaim (Breach of Contract)

(1) Recruiting and succession planning (see NYSCEF Doc. No. 5, ¶¶ 66—67). For the reasons stated above, triable issues exist as to whether Rand performed its commitment to recruit for MSRT and to assist in Seiden's succession planning. This part of the counterclaim survives.

(2) Training revenue stream (see NYSCEF Doc. No. 5, ¶ 68). This theory is dismissed. The Agreement says nothing about compensating Seiden for training, and the merger clause bars adding such a term from prior negotiations. See NYSCEF Doc. No. 56, ¶ 6 [f]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162—163 [1990]. Seiden's own correspondence confirms the point. He wrote in March 2024 that compensation for training was always discussed on the basis that "we have to work something out," and in June 2024 that the contract language on this subject "was not specific at all." See NYSCEF Doc Nos. 80, 82. At most, the parties agreed to negotiate a training arrangement later, which is not enforceable. See Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]. The general promise "to assist in . . . succession planning" cannot be read to impose an unstated obligation to pay Seiden for training.

(3) Luxury market (see NYSCEF Doc. No. 5, ¶ 69). This theory is dismissed. No provision of the Agreement obliges Rand to help Seiden create and implement a luxury market program, and the merger clause bars proof of a prior understanding to that effect. See W.W.W. Assoc., 77 NY2d at 162—163.

(4) Technology and training (see NYSCEF Doc. No. 5, ¶ 70). This theory is dismissed. The Agreement requires Rand to "provide training, technology, marketing and support services," without specifying any team-model system. Rand showed that it made training, its H-Suite platform, agent websites, email and server access, and marketing tools available (see NYSCEF Doc. No. 55, Rand Aff. ¶¶ 29—31), and Defendants' answer admits that Rand made training available. See NYSCEF Doc No. 64, Answer ¶ 18 [g]. Seiden does not deny that these resources were provided. He contends that his team's own systems were better and that the team did not use Rand's. See NYSCEF Doc. No. 75, Seiden Aff. ¶ 36. A party's choice not to use services made available to it does not establish that the services were not provided.

(5) Lost profits. Rand contends that the lost profits sought in ¶ 73 (see NYSCEF Doc. No. 5) are speculative. See Kenford Co. v County of Erie, 67 NY2d 257, 261 [1986]. In opposition, Seiden states that he does not seek lost profits but actual damages. See NYSCEF Doc. No. 75, Seiden Aff. ¶ 59. The First Counterclaim is therefore dismissed insofar as it seeks lost profits. The Court expresses no view on whether the relocation expenses Seiden attributes to Rand's conduct as tenant under the separate lease (see NYSCEF Doc. No. 5, ¶¶ 60—62) are recoverable on this counterclaim. Neither side has briefed that question.

(6) Commissions (see NYSCEF Doc. No. 5 ¶¶ 71—72). This part of the counterclaim is the subject of the cross-motion and survives.

B. Second Counterclaim (Unjust Enrichment)

The Second Counterclaim is dismissed. A valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract for events arising out of the same subject matter. See Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; See also IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]. The listings, receivables, commissions and exclusive-right-to-sell agreements Seiden seeks to recover were transferred under ¶ 1 of the Agreement, and the commissions are governed by ¶ 3 (a) (i) of the Agreement. Defendants may plead in the alternative only where there is a bona fide dispute as to the existence of a contract or whether it covers the dispute. There is none here. Defendants sue to enforce the Agreement, and their own Seventh Affirmative Defense asserts that the existence of "a valid and enforceable written contract governing the particular subject matter" bars Rand's unjust enrichment claim. See NYSCEF Doc No. 64, Answer ¶ 42. Their argument that frustration of purpose or the lack of a meeting of the minds could render the Agreement unenforceable is rejected for the reasons stated above.

C. Third Counterclaim — Fraudulent Inducement

The Third Counterclaim is dismissed as duplicative of the First. A fraud claim that arises from the same facts as a breach of contract claim and seeks the same damages is duplicative. See Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896, 898—899 [2d Dept 2010]. A misrepresentation of present fact collateral to the contract can support a separate fraud claim, but a misrepresentation of an intent to perform under the contract generally cannot. See First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 291—292 [1st Dept 1999].

The representations alleged are that Rand would and could bring agents from other Rand offices onto Seiden's team, would build a "Team Division" or consulting arrangement, did recruiting every day, and would have no difficulty adding agents. See NYSCEF Doc No. 5, Answer ¶ 80; See NYSCEF Doc. No. 75, Seiden Aff. ¶ 15. Each concerns what Rand would do after the affiliation began, which is the subject of ¶¶ 3 (b) (ii) and (iii) of the Agreement. See NYSCEF Doc. No. 56. The statement that adding agents from other Rand offices was a "no-brainer" fares no better. The Agreement itself addresses intra-company transfers (see NYSCEF Doc. No. 56, ¶ 3 [b] [iii]), and Rand made an exception to its policy and transferred one agent to MSRT (see NSYCEF Doc. No. 90, Zurlo Tr. at 92). The Team Division concept is, at most, an agreement to agree.

The counterclaim also seeks no distinct damages. Fraud damages are measured by the actual pecuniary loss caused by the fraud, not the benefit of the bargain. See Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]. The counterclaim seeks the costs of relocating and re-establishing Seiden's independent business. See NYSCEF Doc No. 5, Answer ¶ 83. Those costs arose from the end of the affiliation and are also claimed as "increased expenses" under the First Counterclaim. See NYSCEF Doc. No. 5, Answer ¶ 73. Seiden identifies no out-of-pocket loss caused by entering into the Agreement that is separate from his contract damages.

D. Fourth Counterclaim (Indemnification)

The Fourth Counterclaim is dismissed. An indemnification clause is presumed to cover claims by third parties, and it will not be read to cover claims between the contracting parties unless that intention is "unmistakably clear" from the language. See Hooper Assoc. v AGS Computers, 74 NY2d 487, 491—492 [1989]. Paragraph 4 (b) of the Agreement is a reciprocal indemnity that also covers pre-existing liabilities, taxes and negligence, which are classic third-party exposures. See NYSCEF Doc. No. 56. Nothing in it makes unmistakably clear that it was meant to cover Seiden's own claims against Rand for breach of the Agreement. The counterclaim also seeks the same damages for the same alleged breaches as the First Counterclaim (see NYSCEF Doc No. 5, Answer ¶ 86) and is duplicative of it.

III. DEFENDANTS' CROSS-MOTION (MOTION SEQ. NO. 2) FOR PARTIAL SUMMARY JUDGMENT ON THE COMMISSIONS

The cross-motion is GRANTED as to liability and DENIED as to the amount. The parties agree that commissions are owed on the seventeen (17) transactions. Rand withheld them, then tendered amounts computed largely at a 65% split, and its May 8, 2026, letter acknowledges that it owes Seiden on the last of them. See NYSCEF Doc. No. 55, Rand Aff. ¶¶ 34—36; See also NYSCEF Doc No. 88. The dispute is over the governing split and certain deductions. Seiden has shown, as a matter of law, that the commissions are payable at the split negotiated in ¶ 3 (a) (i) of the Agreement. See NYSCEF Doc. No. 79. Rand has not raised a triable issue. Four (4) independent reasons support this conclusion.

First, the specific, negotiated term controls. Paragraph 3 (a) (i) of the Agreement fixes the split for the "TEAM, including MARK SEIDEN individually," in language the parties amended by hand and initialed. See NYSCEF Doc. No. 79. The IC Agreement, signed eight (8) days later, is a pre-printed form that incorporates the Plaintiff's Manual in general terms. See NYSCEF Doc. No. 61. Where two (2) provisions conflict, the specific governs the general. See Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46 [1956]. The structure of ¶ 3 (a) (i) of the Agreement confirms this. Its first sentence makes the agents moving to Rand subject to "separate independent contractor agreements." See NSYCEF Doc. No. 79. Its second sentence separately fixes the economic terms for the team, including Seiden. See NYSCEF Doc. No. 79. Rand's managing member, matthew Rand, could not identify any provision of the Agreement making the Manual applicable to Seiden, and conceded that the negotiated early-termination provision says nothing about reducing commissions. See NYSCEF Doc. No. 89, Rand Tr. At 150, 157—161.

Second, Rand's reading would nullify the Agreement. Under IC Agreement ¶ 9 (a) (see NYSCEF Doc. No. 61) and the Manual (see NYSCEF Doc. No. 62), either party may end the association at any time, and the 65% split then applies to all commissions due. On Rand's reading, Rand could have ended a five (5) year association at will and immediately cut the negotiated 80—90% split to 65%. That reading cannot be squared with ¶¶ 3 (a) (i) and 5 (a) of the Agreement, and a contract is not to be read so as to render its provisions meaningless. See Beal Sav. Bank, 8 NY3d at 324—325. The Court declines to read a general form signed at an onboarding session as having silently rewritten the central economic term of the parties negotiated agreement.

Third, Rand has not shown that the Manual provision bound Seiden even under the IC Agreement. The only Manual in the record is the version "Revised April 2024." See NYSCEF Doc. No. 62. Under IC Agreement ¶ 8, Seiden is bound by a revision only "so long as Sales Associate was given notice about the update or revision." See NYCEF Doc. No. 61. Rand offers no evidence that Seiden was given notice of the April 2024 revision, or of what the Manual provided in August 2023. Its managing member. Matthew Rand, did not know whether Seiden ever received the Manual. See NYSCEF Doc. No. 89, Rand Tr. At 146, 155, 168—170. Counsel's assertion that Seiden agreed to the 65% split is not evidence. See Zuckerman, 49 NY2d at 563.

Fourth, Rand did not apply its own position consistently. Rand says Seiden terminated the parties' affiliation effective August 21, 2024. Yet its own schedule pays the commission on a transaction that closed on August 23, 2024, three (3) days after the termination, at 90%. See NYSCEF Doc Nos. 57, 58.

In light of this holding, the Court does not reach Seiden's alternative argument that the reduction breached the implied covenant of good faith and fair dealing.

The amount owed to Defendants depends on disputed facts. Seiden has not established the amount of $142,926.95 as a matter of law. That figure rests on computations described in his affidavit, without a transaction-by-transaction schedule that ties to the total. See NYSCEF Doc. No. 75, Seiden Aff. ¶ 41. The figures in the record do not reconcile. Seiden's affidavit states that the sixteen (16) returned checks totaled $68,076.04, while the face amounts listed in his counsel's January 7, 2025, letter total $65,586.67. See NYSCEF Doc No. 85. Rand's schedule totals all seventeen (17) checks at $74,117.67. See NYSCEF Doc No. 58.

Several components also depend on disputed facts:

• The "year" for resetting the thresholds. Paragraph 3 (a) (i) of the Agreement requires the company-dollar and resource-fee metrics to be reached "every year" but does not define the year. Vouchers issued during the affiliation showed an anniversary end date of August 31, 2024 (see NYSCEF Doc No. 84), while post-termination vouchers used July 31, 2025 (see NYSCEF Doc No. 83). Neither side offers evidence of what the parties agreed.

• The $14,992.30 "personal assistant" deduction. Rand says this was an agreed administrative charge (see NYSCEF Doc. No. 55, Rand Aff. ¶ 36 n 1), and ¶ 3 (b) (i) of the Agreement makes Seiden responsible for the salaries of his team's employees. Seiden says there is no basis for it. Whether Rand paid for an assistant on MSRT's behalf, and on what terms, is a question of fact.

• The $569.28 E&O and marketing deduction, including charges allegedly assessed for an agent who had left the team.

• Interest. Seiden is entitled to statutory interest on each commission from the date it became due. See Civil Practice Law and Rules § 5001 [a], [b]). The computation, and whether and to what extent Rand's tenders affect the accrual of interest, will be determined with the principal.

Rand's counsel's assertion that the commissions "became subject to offsets" once Seiden left (see NYSCEF Doc No. 97 at 5) cites no contractual basis and is not evidence. See Zuckerman, 49 NY2d at 563. Any deduction must rest on Agreement ¶ 3 (a) (i), ¶ 3 (b) (i), or another term of the Agreement, and Rand will bear the burden of proving it at trial.

The amount of commissions and interest due on the seventeen (17) transactions will be tried together with the remaining issues in the action. See Civil Practice Law and Rules § 3212 [c]. Because Rand's claim under ¶ 5 (a) of the Agreement, if established, may give rise to an offsetting recovery, entry of a money judgment on the commission claim shall be determined after trial. See Civil Practice Law and Rules § 3212 [e] [2].

IV. REMAINING REQUESTS BY PLAINTIFF AND DEFENDANTS (MOTION SEQ. NOS. 1 and 2)

Both sides request attorneys' fees, and neither provides a basis in their motions for this to grant same. The only fee language in the Agreement appears in ¶ 5 (b) (iv), which provides that the parties "will be responsible for paying all of the other parties' costs in enforcing this Agreement, including reasonable attorney fees." See NYSCEF Doc. No. 56. Whether that sentence reaches beyond the non-solicitation and non-hire covenants with which it appears (see NYSCEF Doc. No. 56, ¶ 6 [e] [headings disregarded]), and if so, which party is entitled to fees, cannot be decided until the claims are resolved. A contractual fee-shifting provision is strictly construed and applies only where the intent to shift fees is unmistakably clear. See Hooper Assoc., 74 NY2d at 491—492. Both requests are DENIED without prejudice to renewal at the conclusion of the action.

In addition, Defendants argue that Rand acted in bad faith by reporting the returned commission checks as 2024 income. See NYSCEF Doc. No. 75, Seiden Aff. ¶¶ 42—44. No counterclaim raised by the Defendant in his Answer seeks relief for that conduct, and the cross-motion (Motion Seq. No. 2) also seeks none. The issue is raised for the first time in Seiden's Affirmation. The Court does not reach the issue, except to note that the amounts reported will be fixed by the determination of the commission claim.

Rand's request for costs on its motion is DENIED.

Accordingly, it is hereby

ORDERED that the branch of Plaintiff's motion (Motion Seq. No. 1) seeking summary judgment on its First Cause of Action for breach of contract is DENIED; and it is further

ORDERED that, pursuant to Civil Practice Law and Rules § 3212 (g), the following facts are deemed established for all purposes in this action: (1) the Affiliation Agreement effective August 16, 2023 is a valid and binding contract; (2) Plaintiff paid defendant Mark Seiden $400,000 pursuant to paragraph 3 (a) of the Affiliation Agreement; (3) paragraph 5 (a) of the Affiliation Agreement is an enforceable liquidated damages provision and not a penalty; and (4) Defendant Mark Seiden ended his association with Plaintiff before the end of the five (5) year term by his own election, and not by reason of death or incapacity; and it is further

ORDERED that the branch of Plaintiff's motion seeking dismissal of the counterclaims (Motion Seq. No. 1) is GRANTED to the extent that (a) the Second Counterclaim (unjust enrichment), Third Counterclaim (fraudulent inducement) and Fourth Counterclaim (indemnification) are DISMISSED, and (b) the First Counterclaim (breach of contract) is DISMISSED insofar as it is premised on the allegations of paragraphs 68, 69 and 70 of the Verified Answer with Counterclaims and insofar as it seeks lost profits, and is otherwise DENIED; and it is further

ORDERED that Defendant Mark Seiden's cross-motion (Motion Seq. No. 2) is GRANTED to the extent that Mark Seiden is awarded partial summary judgment on liability on that portion of the First Counterclaim seeking unpaid commissions on the seventeen (17) transactions that closed between August and December 2024, and it is DECLARED that those commissions are payable at the commission split, and subject only to the fees and charges, provided in ¶ 3 (a) (i) of the Affiliation Agreement or otherwise authorized by the Affiliation Agreement, and not at the 65% post-termination split set forth in plaintiff's Policy and Procedure Manual; and the cross-motion is otherwise DENIED; and it is further

ORDERED that the amount of commissions due on those transactions, together with statutory interest pursuant to Civil Practice Law and Rules § 5001, shall be determined at the trial of this action, and entry of a money judgment thereon shall abide the trial of the remaining claims (Civil Practice Law and Rules § 3212 [c], [e] [2]); and it is further

ORDERED that the parties' respective requests for attorneys' fees are DENIED without prejudice to renewal at the conclusion of the action; and it is further

ORDERED that counsel shall appear for a pretrial conference in Part 3 on November 23, 2026, at 2:00 p.m. and file any motions in limine on or before November 16, 2026, via NYSCEF. All exhibits are to be uploaded to the Virtual Evidence Courtroom on or before November 9, 2026.

The foregoing constitutes the Decision and Order of the Court as to Motion Seq. Nos. 1

and 2.

Dated: October 30, 2026

New City, New York

FOOTNOTES

1.   The transcript of Renee Zurlo's deposition provides excerpts, which is allowed pursuant to Pankratov v 2935 OP, LLC, 160 AD3d 757 [2d Dept 2018] unless there is an objection by the opposing party. Here, there is no objection by Plaintiff to the excerpts provided by Defendant in support of their cross-motion. However, the portion provided by Defendant addressing Plaintiff's recruitment efforts skips from page 75, which references "Jerome," to page 76 which references a female, but does not provide the name. See NYSCEF Doc. No. 90. Pdf pages, 28-29. The Court believes based upon the context addresses the transfer of Aireen Craig. See NYSCEF Doc. No. 90, pages 28-29.

2.   The excerpts from Matthew Rand's deposition transcript inexplicably jump from page 93 to page 95 at a point when Rand is discussing the reason he offered Seiden $25,000 in March 2024. See NYSCEF Doc. No. 89, pages 33-34. Rand's counsel reserved an objection, under Civil Practice Law and Rules § 4547, to the use of these offers at trial. See NYSCEF Doc. No. 55, Rand Tr. at 96—97, pages 35-36. The Court does not rely on them as an admission of breach. They are recited only as background, and the result below would be the same without them.

3.   NYSCEF Doc. No. 82, which is titled "Email-Deposition Ex F" contains two (2) emails sent by Defendant Seiden, the firs from June 25, 2024, and the second from June 27, 2024.

4.   Rand's notice of motion seeks summary judgment only on its breach of contract cause of action, not on its Second Cause of Action for unjust enrichment. Paragraph 5 (a) also binds only "MARK SEIDEN" individually. Rand has not shown a basis for judgment under that paragraph against the second-named defendant, which defendants describe as a d/b/a of Mark J. Seiden Real Estate, Inc. and which has raised personal jurisdiction and capacity defenses (Answer, Fifth and Tenth Affirmative Defenses).

5.   Rand has not argued that Seiden, by continuing to perform and accept the benefits of the Agreement for several months after the claimed breach, elected to keep the contract in force and limited himself to a claim for damages. The Court expresses no view on that question.

John P. Collins Jr., J.