Stipulated Motion in East Coast Realtors, Inc. v. 175 Nassau Road Holding Inc. Original Defendant and Counterclaim Plaintiff, Louis Eustache Original Defendant and Counterclaim Plaintiff, Narul Tony Hack Counterclaim Defendant, Greensboro Real Estate Holdings Llc Counterclaim Defendant| Trellis.Law

On April 01, 2021 a Party Notice was filed involving a dispute between East Coast Realtors, Inc., and 175 Nassau Road Holding Inc. Original Defendant And Counterclaim Plaintiff, Greensboro Real Estate Holdings Llc Counterclaim Defendant, Louis Eustache Original Defendant And Counterclaim Plaintiff, Narul Tony Hack Counterclaim Defendant, for Commercial Division - Contract in the District Court of Nassau County.

Preview
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU:

EAST COAST REALTORS, INC., Index No. 60403612021

Plaintiff, DECISION & ORDER
WITH NOTICE OF ENTRY
-against

175 NASSAU ROAD HOLDING, INC. and
LOUIS EUSTACHE,

Defendants.

PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order of the

Hon. Randy Sue Marber, dated and entered on October 12, 2022 in the office of the clerk of the

within named court.

Dated: New York, New York
October 13,2022

or Plaintiff
7 Penn. a - Suite 1606
New York, NY 10001
(212) 213-2510

1 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

Present: HON. RANDY SUE MARBER

JUSTICE TRIAL/lAS PART 3

EAST COAST REALTORS, INC.,

Plaintiff, Index No.: 604036121
Motion Sequence ... 01,02,03
-against- Motion Date ...07/06/22
XXX
175 NASSAU ROAD HOLDING, INC. and
LOUIS EUSTACHE\

Defendants.
--------------------------------~
x
Papers Submitted:
Notice of Motion (Mot. Seq. 01 )...................x
Affidavit in Support ...............................x
Affirmation in Opposition .......................x
Memo of Law in Opposition ....................x
Affirmation in Reply .............................x
Supplemental Affirmation .......................x
Order to Show Cause (Mot. Seq. 02) ...........x
Affidavit in Support...............................x
Affirmation in Opposition ........................x
Affirmation in Opposition ........................x
Notice of Motion (Mot. Seq. 03) ................x
Affidavit in Support ................................x
Affirmation in Opposition ........................x
Affidavit in Opposition ............................x
Reply Affirmation ................................. x
Upon the foregoing papers, the motion (Seq. 01) by the Plaintiff, EAST

1 The Defendants in their Answer changed the caption by including nonparties MaruI Tony Hack and
Greensboro Real Estate Holdings LLC as "Counterclaim Defendants". The Court shall utilize the caption
with just the named Defendants, 175 NASSAU ROAD HOLDING, INC. and LOUIS EUSTACHE.

1 of 10

2 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021

NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

COAST REALTORS, INC. ("East Coast"), seeking an Order pursuant to CPLR § 3212,

granting it partial summary judgment on its claims as against the Defendants, 175

NASSAU ROAD HOLDING, INC. ("175 Nassau") and LOUIS EUSTACHE

("Eustache"), and dismissing the Defendants' Affirmative Defenses and Counterclaims;

the Order to Show Cause (Seq. 02) by the Plaintiff, East Coast, pursuant to CPLR 6201,

6210 and 6212, seeking an order of attachment to be levied against the funds from the

closing of 163-175 Nassau Road; and the motion (Seq. 03) by the

Defendants/Counterclaim Plaintiffs, 175 Nassau and Eustache, seeking an Order pursuant

to CPLR 3215 granting them a default judgment as against the Counterclaim Defendant,

NARUL TONY HACK ("Hack"), are decided as hereinafter provided.

The Plaintiff commenced this action against 175 Nassau and Eustache on

April 1, 2021. Issue was joined by the filing of the Defendants' Answer with

Counterclaims on May 6, 2021. In their Answer, the Defendants asserted counterclaims

against the Plaintiff, East Coast, as well as nonparties. Hack and GREENSBORO REAL

ESTATE HOLDINGS, LLC ("Greensboro"). The Defendants also filed a "Counterclaim

Summons" purportedly served upon the Counterclaim Defendant, Hack.

This action arises out of the Defendants' alleged breach of a brokerage

commission agreement due to the Plaintiff for the prospective sale of the Defendants'

property located at 163-175 Nassau Road, Roosevelt New York 11575 (the "Property").

The Defendant, Eustache is the president of 175 Nassau.

2 of 10

3 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021

NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

On February 6, 2020, the Defendants entered into a six-month exclusive

Right to Sell brokerage commission agreement with the Plaintiff for sale of the Property.

Pursuant to a listing agreement, East Coast and Hack were tasked with listing the

Property for $3,975,000. This listing was to be valid through August 31, 2020. The

Commission Agreement provides for a brokerage commission of $250.00 plus 4% of the

total sales price of the Property. The Agreement provides, in pertinent part:

Payment of the commission is due at closing or lease signing
and shall be in the form of a certified check or attorney's
check. If you willfully fail to close on the property, after a
contract of sale or lease is fully executed, then we shall be
entitled to our full commission. The commission shall be
deemed fully earned upon the introduction of a buyer ready,
willing and able to purchase under the terms hereunder.

(See Brokerage Commission Agreement, NYSCEF Doc. No.8).

Hack is an associate real estate broker for East Coast. During the term of

the Commission Agreement, Hack brought a prospective purchaser to the Defendants,

175 South Franklin Deli Corp ("South Deli"). The Defendant, Eustache, states in an

affidavit that he was presented with a letter of intent ("LOI") for a cash offer for the

Property from South Deli for a purchase price of $3,500,000. The Defendant asserts that

he was "hesitant" to accept the buyer's offer, "so Hack lowered the amount of his

commission to $50,000.00" (See Eustache Affidavit at ~8, NYSCEF Doc No. 26).

However, there are no emails or other writings to support the contention that Hack had

lowered the commission.

Eustache confirms in his affidavit that on or about August 24, 2020, he

3 of 10

4 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021

NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

decided to accept the buyer's LOI and signed same on behalf of 175 Nassau. Thereafter,

on October 16, 2020, the Defendant, 175 Nassau (as seller) and South Deli (as

purchaser), entered into a written contract of sale for the Property, with a purchase price

in the sum of $3,500,000.00, in cash, with no mortgage contingency (See NYSCEF Doc.

No. 10).

On February 24, 2021, the Defendants and the purchaser entered into an

extension agreement which provided for a closing date of March 31, 2021, with "TIME

BEING OF THE ESSENCE") (See NYSCEF Doc. No. 11). The parties did not close on

March 31, 2021. Thereafter, South Deli commenced an action against 175 Nassau in this

Court under Index No. 603977/2021.

According to Hack, the closing scheduled for March 31, 2021 had to be

rescheduled as a result of the Defendants' failure to provide the buyer with Estoppel

Certificates. It is also the Plaintiff's position that the Defendants took the opportunity to

exact more money from the buyer, ultimately resulting in the parties reaching an

agreement on an increased purchase price. Thereafter, the Defendant provided the

requisite Estoppel Certificates on June 7, 2021, and the closing was rescheduled for July

14,2021 (See Hack Affidavit at ~~24-26, NYSCEF Doc. No. 16). However, according to

the Plaintiff, the seller demanded more money, and the closing was agains canceled.

It is the Plaintiff's position that once the parties agreed upon a price and

terms, their respective attorneys negotiated directly and reduced their fmal agreement to a

formal written contract, at which point the Plaintiff earned its commission. As such, the

4 of 10

5 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

Plaintiff now seeks summary judgment on liability as against the Defendants in the total

sum of $140,250 ($250 plus 4% of the $3,500,000 selling price).

In his opposing affidavit, Eustache attest that "[i]t looked like Plaintiffs

Buyer would not be able to close by the March 31, 2021 deadline, as said Buyer's

counsel had not provided certain documents requested by 175 Nassau's lender as of the

morning of March 29, 2021." In support of this contention, Eustache proffers an email

dated March 29, 2021, sent by the buyer's attorney, Jeff Toback, to Eustache (and

others). The email reads: "I thought this went out last week, but in any event, attached is

an assignment of mortgage and "§275 Affidavit" that is required to be recorded with the

assignment. "

Notably, conspicuously absent from Eustache's affidavit in opposition is

any response to Plaintiff s contention that the closing on March 31, 2021 had to be

rescheduled due to the seller's failure to provide Estoppel Certificates. Nor does Eustache

address or oppose in any way the Plaintiff's contention that the Defendant took the

opportunity to exact more money from the buyer and that ultimately another agreement

was reached for an increased purchase price. Notwithstanding the foregoing, the

Defendant claims that "175 Nassau was ready, willing and able to close on March 31,

2021, but Buyer did not close".

Counsel for the Plaintiff submitted a Supplemental Affirmation in Support

of Plaintiff's summary judgment motion wherein it is noted that on March 23, 2022, the

Defendant, 175 Nassau Road and its buyer, South Deli, settled their claims against one

5 of 10

6 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

another. The parties then entered into an "ADDENDUM TO CONTRACT OF SALE"

(See NYSCEF Doc. Nos. 40 and 41). In the Addendum, the parties agreed to extend the

closing date to May 23, 2022, and the purchase price has been increased to

$3,850,000.00. The parties further agreed in the Addendum that $150,000 will be

released to the seller upon signing the Addendum and an additional $3,700,000 will be

paid at closing. Based on the foregoing, Plaintiff s counsel reiterates that there is no

requirement that the sale must close in order for Plaintiff, as broker, to have earned its

commission, and that the commission was earned when the Defendant and South Deli

initially entered into a contract of sale for the Property.

Plaintiffs Summary Judgment Motion (Seq. 01):

The court's function on a motion for summary judgment is to determine

whether material factual issues exist, not to resolve such issues (Ruiz v Griffing, 71 AD3d

1112 [2d Dept. 2010] [internal quotations omitted]). Once the moving party meets its

prima facie burden, the burden then shifts to the opposing party to come forward with

some proof in admissible form that there are genuine issues of material fact which

preclude the granting of summary judgment (Israelson v. Rubin, 20 A.D.2d 668 [2d Dept.

1964], aff'd. 14 N.Y.2d 887 [1964]). The proof necessary to defeat a summary judgment

motion must be in admissible form. .It is incumbent upon a defendant who opposes a

motion for summary judgment to assemble, lay bare and reveal his proofs, in order to

show that the matters set up in his answer are real and are capable of being established

upon a trial." (Spearmon v. Times Square Stores Corp., 96 AD2d 552, 553 [2d Dept.

6 of 10

7 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

1983], quoting Di Sabato v. Soffes, 9 A.D.2d 297,301 [1st Dept. 1959]).

A clear and complete agreement will be enforced according to the tenns set

forth therein by the parties [See Vermont Teddy Bear Co. v. 538 Madison Realty Co., I

N.Y.3d 470,475 (2004)]. Evidence outside the four comers of the agreement may not

be considered in discerning the parties' intent unless it is ftrst determined that the contract

is ambiguous [See Van Wagner Adv. Corp. v. S& M Enters., 67 N.Y.2d 186, 191(1986)].

The threshold detennination regarding whether there is an ambiguity is a question of law

for the court [See Kass v. Kass, 91 N.Y.2d 554,566 (1998)].

"A contract is unambiguous if the language it uses has 'a deftnite and

precise meaning, unattended by danger of misconception in the purport of the

[agreement] itself, and concerning which there is no reasonable basis for a difference of

opinion' " [Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002), quoting Breed v.

Insurance Co. ofN Am., 46 N.Y.2d 351,355 (1978)].

Here, there is no dispute that the Commission Agreement at issue provided

for an "exclusive right to sell". A contract giving a broker the exclusive right to sell

establishes the right to a commission even upon a sale by the owner. [Hammond,

Kennedy & Co. v. Servinational, Inc., 48 A.D.2d 394, 397 (lst Dept. 1975); Barnet v.

Cannizzaro, 3 A.D.2d 745, 746 (2d Dept. 1957)].

It is well settled that "a real estate broker's right to commissions attaches

when he procures a buyer who meets the requirements established by the seller" (Levy v.

Lacey, 22 NY2d 271, 274; Wagner v. Derecktor, 306 N. Y. 386, 390; O'Hara v. Bronx

7 of 10

8 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

Consumer Ice Co., 254 N. Y. 210; Colvin v. Post Mtge. & Land Co., 225 N. Y. 510, 516)

At the juncture that the broker produces an acceptable buyer he has fully performed his

part of the agreement with the vendor and his right to commission becomes enforceable.

"The broker's ultimate right to compensation has never been held to be dependent upon

the performance of the realty contract or the receipt by the seller of the selling price

unless the brokerage agreement with the vendor specifically so conditioned payment.

(Hecht v Meller, 23 NY2d 301,305 [19698], citing, e.g., Levy v. Lacey, supra). "If from a

defect in the title of the vendor, or from a refusal to consummate the contract on the part

of the purchaser for any reason, in no way attributable to the broker the sale falls through,

nevertheless the broker is entitled to his commissions, for the simple reason that he has

performed his contract." (Id. [citations and quotations omitted]).

Applying the foregoing well-settled legal principles to the case at bar, the

Court finds that the Plaintiff has established its prima facie entitlement to summary

judgment on the issue of liability that it earned its commission and is entitled to the sum

of $140,250 ($250 plus 4% of the original agreed upon purchase price in the contract of

sale). Review of the admissible evidence submitted by the Plaintiff reveals that a ready,

willing and able buyer was procured by the Plaintiff and the subsequent

cancellations/rescheduling of the closing was at no fault of the Plaintiff. In fact, the

evidence supports the Plaintiffs position that it was the seller who prevented the sale

from closing.

In opposition, the Defendant failed to raise an issue of fact. Most notably,

8 of 10

9 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021

NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

the Defendants did not oppose, and therefore admitted, that the March 31, 2021 closing

had to be rescheduled due to the seller's failure to provide Estoppel Certificates and that

in reality, the seller was making every effort to increase the purchase price. These

occurrences do not bear on the broker's right to commission that was duly earned.

Accordingly, the Plaintiffs motion for partial summary judgment on the issue of liability

as against the Defendants, is granted.

Moreover, the branch of the Plaintiff's motion seeking to dismiss the

Defendants' Counterclaims as asserted in their Answer, is hereby granted. The Court

finds, based on the record presented, particularly the recent Addendum entered into

between the Defendant and South Deli (the same original buyer procured by the

Plaintiff), the Defendants' Counterclaims to be patently without merit.

Plaintiffs Order to Show Cause (Seq. 02) for Order of Attachment:

The court may grant an order of attachment pursuant to CPLR § 6201(3)

where "the defendant, with intent to defraud his creditors or frustrate the enforcement of

a judgment that might be rendered in plaintiffs favor, has assigned, disposed of,

encumbered or secreted property, or removed it from the state or is about to do any of

these acts." (VisionChina Media, Inc. v. Shareholder Representative Servs., LLC, 109

A.D.3d 49, 59-60 [1st Dept. 2013]). Where a party seeks attachment pursuant to CPLR §

6201 (l), they must "demonstrate an identifiable risk that the defendant will not be able to

satisfy the judgment." (Id.)

Here, as correctly noted by defense counsel, both Defendants are domiciled

9 of 10

10 of 11
FILED: NASSAU COUNTY CLERK 10/13/2022 04:09 PM INDEX NO. 604036/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/13/2022
INDEX NO. 604036/2021
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 10/12/2022

in New York and there is barely any proof that there is an identifiable risk that the

Defendants would not be able to satisfy a money judgment. An order of attachment is a

drastic remedy and based on the evidence presented, such extreme relief is not warranted

at this juncture2 •

Defendants' Default Motion (Seq. 03):

In light of the Court's determination herein on Plaintiff's motion (Seq. 01),

the Defendants' motion for a default judgment as against "Counterclaim Defendant",

Hack, is denied as moot.

Accordingly, it is hereby

ORDERED, that Plaintiff's motion (Seq. 01), seeking an Order granting it

summary judgment as against the Defendants, 175 Nassau and Eustache, is GRANTED,

and the Defendants' Counterclaims are DISMISSED; it is further

ORDERED, that the Plaintiff's motion (Seq. 02), for an order of

attachment, is hereby DENIED in its entirety; and it is further

ORDERED, that the Defendants' motion (Seq. 03), seeking a default

judgment as against the Counterclaim Defendant, Hack, is hereby DENIED, as moot.

DATED: Mineola, New York
October 12, 2022

Hon.

2 In the event the Defendants do not satisfy the judgment that is likely to ensue following the within
detennination, the Plaintiff still has remedies available to it for the enforcement thereof.

10 of 10

11 of 11

Case Info

Judge

Randysue Marber Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 13, 2022

Case Filing Date

April 01, 2021

County

Parties

175 NASSAU ROAD HOLDING INC. Original Defendant and Counterclaim Plaintiff Defendant
BARNES, LEO K Attorney for the Defendant
EAST COAST REALTORS, INC. Plaintiff
GLASSMAN, KENNETH JAY Attorney for the Plaintiff
GREENSBORO REAL ESTATE HOLDINGS LLC Counterclaim Defendant Defendant
IKHLAS, MUHAMMAD Attorney for the Defendant
Louis Eustache Original Defendant and Counterclaim Plaintiff Defendant
Narul Tony Hack Counterclaim Defendant Defendant
Russo, Sonia Agnieszka Attorney for the Defendant
MARIE FRANCOIS Attorney
FRANCOISE MADY Attorney
CARY WILLIAMS Attorney
RYAN MCMAHON Attorney
JONATHAN GLASSMAN Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Party Notice: East Coast Realtors, Inc. v. 175 Nassau Road Holding Inc. Original Defendant and Counterclaim Plaintiff, Louis Eustache Original Defendant and Counterclaim Plaintiff, Narul Tony Hack Counterclaim Defendant, Greensboro Real Estate Holdings Llc Counterclaim Defendant

Preview

Related Topics

Case Info

Parties