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Court Rules on Notice of Pendency


A Probate Lawyer said the plaintiffs, TM Inc. and Mr. D commenced this action against the defendants, Mr. and Mr. X alleging that the defendants failed to pay a real estate brokerage commission. The file reveals that after commencing this action, the plaintiffs filed with the Richmond County Clerk a “Notice of Pendency” against the defendants’ real property located at 1XX Winant Avenue, Staten Island, New York in order to secure payment of the real estate broker’s commission claimed due in this matter. The notice of pendency was dated on April 25, 2005 the same date of the summons and complaint. The plaintiffs’ filing of the notice of pendency with the County Clerk on April 26, 2005 necessitated the defendants seeking an order to show cause to cancel the lispendens (Annotation at the back of the title as to the pending issue involving the said property) of record. A hearing on the issue resulted in an order dated May 6, 2005 canceling the notice of pendency.

The court made a finding that plaintiffs’ complaint is for breach of contract and it is not one that seeks a judgment which would “affect the title to, or possession, use or enjoyment of, real property” as required by CPLR 6501 as a basis for filing a notice of pendency.

Defendants have asserted two counterclaims; one alleges that the plaintiffs have violated the Federal Debt Collection Practice Act (FDCPA) and the second alleges that the plaintiffs improperly filed the notice of pendency. Plaintiffs also seek to dismiss two affirmative defenses of the defendants, one alleging a failure of documentary evidence while the second asserts the equitable defense of unclean hands. The defendants have opposed the motion by filing a cross-motion seeking dismissal of the complaint.

A. The Legality of the Notice of Pendency.

An Estate Lawyer said that the court below correctly determined that the plaintiffs were not entitled to file a notice of pendency in this action. What troubles the Court is that the plaintiffs somehow thought they could record such a document against the defendants’ real property. However, as a licensed real estate broker defendants are charged with a certain level of expertise and training. Real estate brokers in New York are regulated by the Department of State. They are required to have a certain amount of training, pass a written examination and attend continuing education programs to retain their licenses.

Brooklyn Probate Lawyers said this being the situation, the plaintiffs and their counsel, should have been aware that there is no statutory authority giving real estate brokers the right to file a lispendens in regard to the sale of residential real estate. In fact, the clerk is to note upon the broker’s affidavit that such notice does not constitute a lien nor shall it invalidate any transfer or lease. It should also be pointed out that real estate brokerage contracts are not mentioned as a type of contract that may be recorded as an executory contract pursuant to RPL 294. Case law has consistently held that a lispendens is not proper in an action for the recovery of a real estate broker’s commission. Yet plaintiffs herein did not file an RPL 294-b affidavit; they filed a lispendens.

The actions of the plaintiffs were wrongful and designed to force the defendants to pay a broker’s commission to which the plaintiff’s entitlement was in dispute. The sole purpose of the filing of the lispendens was to compel the defendants to pay the plaintiffs or risk losing the purchaser.

Bronx Probate Lawyers said that the plaintiffs’ motion to dismiss defendants’ second counterclaim alleging an improper filing of the notice of pendency is denied. Defendants’ cross-motion for summary judgment on this cause of action is granted on the issue of liability. The matter will be set down for a trial on the issue of the damages suffered by the defendants as a result of the plaintiffs’ actions.

B. The Defense of Documentary Evidence

Defendants have raised as an affirmative defense that the plaintiffs have not established by documentary evidence that they are entitled to the broker’s commission. Plaintiffs have moved to dismiss this defense. The parties are seeking to decide by motion what are the essential factual issues of this case; that is, the license status of the plaintiff and its salespersons, the facts and circumstances surrounding the execution of the listing agreement, and whether the plaintiffs produced a buyer ready, willing and able to purchase the premises on the terms and conditions being offered by the defendants so that a commission has been earned. It should be pointed out that plaintiffs have not provided any evidence that the listing salesperson was licensed at the time he allegedly took the listing; a fatal defect to recovery on plaintiff’s claim.

Plaintiffs’ motion to dismiss this affirmative defense is denied. These issues raise questions of fact to be decided at trial.

On the other hand, it is clear that the evidence establishes that the claim of the plaintiffs is totally without merit. Plaintiffs argue that the listing agreement created an “exclusive right to sell” relationship between the parties. The listing agreement defines this agency relationship as one which provides that if you, as owner of the property find a buyer for your house, or if another broker finds a buyer, you must pay the agreed commission to the present broker. The intent of this clause is to guarantee that the listing broker is not deprived of earning a commission by the actions of the home owner and that the broker be given the opportunity to perform the services for which it was hired.

The language of the clause and the agreement contemplate that the broker will be compensated during the term of the agreement and for a period of sixty days after the termination of the agreement if the property is sold to a buyer introduced to the property during the term of the agreement. The plaintiffs’ case fails because the buyer of the property was not introduced to the property during the term of the agreement. The evidence established that the buyer of the property was a neighbor of the defendants who entered into a handwritten binder agreement on January 10, 2005, one month before the listing agreement was signed on February 8, 2005. Therefore the buyers were neither introduced to the property during the term of the agreement nor through the efforts of the plaintiffs.

We still live in a society where in order to be paid you must either perform the work you agreed to perform, or be prevented from doing the work by the actions of the defendants; neither is the case here. Plaintiffs did nothing to bring about the sale. Plaintiffs did not produce a ready, willing and able buyer nor were their actions the procuring cause of the sale. In fact, plaintiffs’ actions sought to prevent the sale. Plaintiffs seek to capitalize on the efforts of the defendants. Had the neighbors come along and signed the binder after the date of the listing agreement or even waited until after the listing expired, plaintiffs might have a viable claim under the terms of the agreement. This did not occur so the claim must fail.

Plaintiffs’ complaint is dismissed on the merits. Defendants’ cross-motion is granted to the extent of awarding the defendants’ a judgment arising from the plaintiffs’ baseless recording of a notice of pendency against plaintiffs’ real property. Defendants’ motion to dismiss plaintiffs’ complaint is granted. The matter will be set down for a trial on the issue of the damages sustained by the defendants arising from the improper recording of the lispendens.

Unscrupulous people often take advantage to the innocence of ordinary. To protect your property rights always seek the advice of expert real property lawyers.

Here at Stephen Bilkis & Associates we have Richmond County Estate Lawyers and Richmond County Estate Administration Attorneys eager to protect and advance your property rights against corrupt and dishonest people who know nothing but to take advantage with the unacquainted.

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