STIEFVATER REAL ESTATE INC v. HIMBAUGH III

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Supreme Court, Appellate Division, Second Department, New York.

STIEFVATER REAL ESTATE, INC., respondent, v. Lyle B. HIMBAUGH III, appellant.

Decided: July 24, 2007

HOWARD MILLER, J.P., WILLIAM F. MASTRO, ROBERT A. LIFSON, and EDWARD D. CARNI, JJ. Patrick J. Bliss, White Plains, N.Y., appellant. Penn Proefriedt Schwarzfeld & Schwartz, New York, N.Y. (Neal Schwarzfeld of counsel), for respondent.

In an action, in effect, to recover a finder's fee in connection with the sale of real property, the defendant appeals from a judgment of the Supreme Court, Westchester County (Colabella, J.), dated September 1, 2006, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $28,000.

ORDERED that the judgment is affirmed, with costs.

 Contrary to the defendant's contention, the evidence adduced at trial supports the Supreme Court's findings that the defendant expressly agreed to pay any introducing broker a finder's fee of 2% for referring a purchaser to him, and that the plaintiff earned that fee by referring the eventual purchasers to the defendant.   Moreover, we discern no basis to disturb the Supreme Court's credibility determinations (see Terry v. State of New York, 39 A.D.3d 846, 832 N.Y.S.2d 809).

 In light of the plaintiff's limited role as a finder, rather than as an agent acting in a fiduciary capacity (see Northeast Gen. Corp. v. Wellington Adv., 82 N.Y.2d 158, 162-163, 604 N.Y.S.2d 1, 624 N.E.2d 129;  Trump v. Corcoran Group, 240 A.D.2d 159, 657 N.Y.S.2d 701), the disclosure requirements of Real Property Law § 443 have no application (see Real Property Law § 443[1] [a] ).

Contrary to the defendant's contention, the statute of frauds has no application in this case (see General Obligations Law § 5-701[a][10];  PKG Assoc. v. Dubb, 306 A.D.2d 333, 760 N.Y.S.2d 681).

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