On July 14, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1145 RECEIVED NYSCEF: 03/22/2022
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 23
HL OPP. - EXHIBIT 23 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1145 RECEIVED NYSCEF: 03/22/2022
NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER
THIS IS NOT A CONTRACT
New York statelaw requires realestate licenseeswho to account. A buyer's agent does not represent the
are acting as agents of buyers or sellersof property to interestsof theseller.The obligations of a buyers
advise the potentialbuyers or sellerswith whom they agent are also subjectto any specificprovisions set
work of the natureof their agency relationshipand forth in an agreement between the agent and the buy-
the rightsand obligations itcreates.This disclosure er.In dealings with the seller,a buyers agent should
will helpyou to make informed choices about your (a)exercise reasonable skilland care in performance
relationship with thereal estatebroker and itssales of theagent's duties;(b) deal honestly, fairlyand in
agents. good faith;and (c) discloseallfacts known to the
agent materially affecting the buyer'sabilityand/or
Throughout the transactionyou may receive more
willingness to perform a contractto acquire seller's
than one disclosure fonn. The law may require each
thatare not mconsistent with the agent'sfi-
transaction to presentyou with property
agent assisting inthe
duciary duties to thebuyer.
thisdisclosure form. A real estateagent isa person
qualified to advise about realestate.
BROKER'S AGENTS
Ifyou need legal,tax or other advice, consult with a
professional in thatfield.
gaged by a listingagent ora buyers agent (but does
not worHor me same ñnn as tlieHstingagent or
DISCLOSURE REGARDING REAL ESTATE
buyer's agent) to assistthelistingagent or buyers
AGENCY RELATIONSHIPS
agent in a property tosellor buy, respective-
locating
ly,for the listingagent'sselleror the buyer agent's
SELLER'S AGENT rela-
buyer. The broker'sagent does not have a direct
A sellets agent is anagent who is engaged by a seller with the buyer or sellerand the buyer or sel-
tionship
to represent the interests.
seller's The selletsagent lercannot provide instructions ordirection directlyto
does this by securing a buyer for theseller'shome at the broker'sagent. The buyer and the sellertherefore
a priceand on terms acceptable to theseller.A sel- do not have vicarious for theacts of thebro-
liability
lets agent without the fidu- ke‘s agent. The agent or buyer'sagent do pro-
has, limitation, following listing
ciary dutiesto the seller:reasonable care,undivided vide direction and instructionto the brokers agent
loyalty,confidentiality,fulldisclosure, obedience and and therefore the listingagent or buyers agent will
duty to account. A sellers agent does not represent have for
liability theacts of thebrokers agent.
the interestsofthe buyer. The obligations of a seller's
agent are also subject to any specificprovisions set DUAL AGENT
forth in an agreement between the agent and the sel-
A real estatebroker may represent both the buyer and
ler.In dealings with the buyer, a seller'sagent should
the sellerifboth thebuyer and sellergive their in-
(a)exercise reasonable skilland care m performance
formed consent inwriting. In such a dual sit-
agency
of theagent's duties; (b)deal honestly, fairlyand in
uation, the agent will notbe able to provide the full
good faith;and (c) disclose allfactsknown tothe
range of fiduciary duties tothe buyer and seller.
The
agent matenally affecting thevalue ordesirability of
obligations of an agent are alsosubject to specif-
any
property, except as otherwise provided by law.
ic provisions setforth inan agreement between the
agent, and the buyer and seller.
An agent acting as a
BUYER'S AGENT
dual agent must explain carefullyto both the buyer
A buyer's agent isan agent who isengaged by a buy- and sellerthat the agent is actingfor theother party
er torepresent the buyer'sinterests.The buyer'sagent as well.The agent should alsoexplain the possible
does this thepurchase of a home ata effectsof dual that con-
by negotiating representation, including by
price and on terms acceptable tothe buyer. A buyers senting to thedual agency relationship the buyer and
agent has, without limitation,the following fiduciary sellerare giving up theirright toundivided loyalty.A
duties tothe buyer: reasonable undivided loyal- buyer or sellershould consider thepossible
care, carefully
ty,confidentiality,fulldisclosure, obedience and duty consequences ofa dual agency relationship before
CONFIDENTIAL HL00015186
HL OPP. - EXHIBIT 23 - PAGE 2
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1145 RECEIVED NYSCEF: 03/22/2022
agreeing to such representation. A seller or buyer the interestsof and advocating on behalf of thebuyer
provide advance informed consent to dual agen- and the designated salesagent for theseller willfunc-
may
cy by indicating the same on thisfonn. tion as theselk:r'sagent representing the interestsof
and on behalf of the sellerinthe negotia-
advocating
DUAL AGENT WITH DESIGNATED SALES tions between thebuyer and seller.A designated sales
AGENTS agent cannot provide the fullrange of fiduciary duties
to thebuyer or seller.
The designated sales agent
Ifthe buyer and the sellerprovide their informed
must explain that like
the dual agent under whose
consent in writing,the principals and the realestate
supervision cannot provide undi-
they function,they
broker who represents both partiesas a dual agent
.idedloyalty.A buyer or sellershould con-
carefully
may designate a sales agent torepresent the buyer
sider thepossible consequences ofa dual re-
ne- agency
and another sales agent to represent thesellerto
with designated sales agents before agree-
purchase and of realestate.A sales lationship
gotiate the sale
ing tosuch representation.A seller orbuyer may
agent works under the supervision of thereal estate
Provide advance mformed consent to dual agency
broker. With the informed consent of the buyer and
with designated sales agentsby mdicating thesame
the sellerin the designated sales agent forthe
_
writing,
on this form.
buyer willfunction as thebuyer's agent representing
isform was provided to me by (printname of licensee)of
(i////AAf / fr9 prm name o company, inn or rokerage), a licensedrealestate broker
A//8p
acting inthe interest of the:
dSeller as a (checkrelationship below) ( ) Buyer as a (check elationship below)
Óeller's agent ( ) Buyer's agent
( ) Broker'sagent ( ) Broker's agent
( ) Dual agent
( ) Dual agent with designated sales agents
For advance informed consent to eitherdual or dual with designated sales agentscomplete sec-
agency agency
tionbelow:
( ) Advance informed consent dual agency
( Advance informed consent to dualagency with designated sales agents
Ifdual agent with designated salesagents isindicated above:
is appointedto represent the buyer; and
is appointedto represent the sellerin thistransaction.
(IXWe) acknowledge receipt of a copyof thisdisclosure form:
Signature of Buyer(s) and/or Seller(s):
Date:
CONFIDENTIAL HL00015187
HL OPP. - EXHlBIT 23 - PAGE 3
Document Filed Date
March 22, 2022
Case Filing Date
July 14, 2018
Category
Commercial Division
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FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1145 RECEIVED NYSCEF: 03/22/2022 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 23 HL OPP. - EXHIBIT 23 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1145 RECEIVED NYSCEF: 03/22/2022 NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER THIS IS NOT A CONTRACT New York statelaw requires realestate licenseeswho to account. A buyer's agent does not represent the are acting as agents of buyers or sellersof property to interestsof theseller.The obligations of a buyers advise the potentialbuyers or sellerswith whom they agent are also subjectto any specificprovisions set work of the natureof their agency relationshipand forth in an agreement between the agent and the buy- the rightsand obligations itcreates.This disclosure er.In dealings with the seller,a buyers agent should will helpyou to make informed choices about your (a)exercise reasonable skilland care in performance relationship with thereal estatebroker and itssales of theagent's duties;(b) deal honestly, fairlyand in agents. good faith;and (c) discloseallfacts known to the agent materially affecting the buyer'sabilityand/or Throughout the transactionyou may receive more willingness to perform a contractto acquire seller's than one disclosure fonn. The law may require each thatare not mconsistent with the agent'sfi- transaction to presentyou with property agent assisting inthe duciary duties to thebuyer. thisdisclosure form. A real estateagent isa person qualified to advise about realestate. BROKER'S AGENTS Ifyou need legal,tax or other advice, consult with a professional in thatfield. gaged by a listingagent ora buyers agent (but does not worHor me same ñnn as tlieHstingagent or DISCLOSURE REGARDING REAL ESTATE buyer's agent) to assistthelistingagent or buyers AGENCY RELATIONSHIPS agent in a property tosellor buy, respective- locating ly,for the listingagent'sselleror the buyer agent's SELLER'S AGENT rela- buyer. The broker'sagent does not have a direct A sellets agent is anagent who is engaged by a seller with the buyer or sellerand the buyer or sel- tionship to represent the interests. seller's The selletsagent lercannot provide instructions ordirection directlyto does this by securing a buyer for theseller'shome at the broker'sagent. The buyer and the sellertherefore a priceand on terms acceptable to theseller.A sel- do not have vicarious for theacts of thebro- liability lets agent without the fidu- ke‘s agent. The agent or buyer'sagent do pro- has, limitation, following listing ciary dutiesto the seller:reasonable care,undivided vide direction and instructionto the brokers agent loyalty,confidentiality,fulldisclosure, obedience and and therefore the listingagent or buyers agent will duty to account. A sellers agent does not represent have for liability theacts of thebrokers agent. the interestsofthe buyer. The obligations of a seller's agent are also subject to any specificprovisions set DUAL AGENT forth in an agreement between the agent and the sel- A real estatebroker may represent both the buyer and ler.In dealings with the buyer, a seller'sagent should the sellerifboth thebuyer and sellergive their in- (a)exercise reasonable skilland care m performance formed consent inwriting. In such a dual sit- agency of theagent's duties; (b)deal honestly, fairlyand in uation, the agent will notbe able to provide the full good faith;and (c) disclose allfactsknown tothe range of fiduciary duties tothe buyer and seller. The agent matenally affecting thevalue ordesirability of obligations of an agent are alsosubject to specif- any property, except as otherwise provided by law. ic provisions setforth inan agreement between the agent, and the buyer and seller. An agent acting as a BUYER'S AGENT dual agent must explain carefullyto both the buyer A buyer's agent isan agent who isengaged by a buy- and sellerthat the agent is actingfor theother party er torepresent the buyer'sinterests.The buyer'sagent as well.The agent should alsoexplain the possible does this thepurchase of a home ata effectsof dual that con- by negotiating representation, including by price and on terms acceptable tothe buyer. A buyers senting to thedual agency relationship the buyer and agent has, without limitation,the following fiduciary sellerare giving up theirright toundivided loyalty.A duties tothe buyer: reasonable undivided loyal- buyer or sellershould consider thepossible care, carefully ty,confidentiality,fulldisclosure, obedience and duty consequences ofa dual agency relationship before CONFIDENTIAL HL00015186 HL OPP. - EXHIBIT 23 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1145 RECEIVED NYSCEF: 03/22/2022 agreeing to such representation. A seller or buyer the interestsof and advocating on behalf of thebuyer provide advance informed consent to dual agen- and the designated salesagent for theseller willfunc- may cy by indicating the same on thisfonn. tion as theselk:r'sagent representing the interestsof and on behalf of the sellerinthe negotia- advocating DUAL AGENT WITH DESIGNATED SALES tions between thebuyer and seller.A designated sales AGENTS agent cannot provide the fullrange of fiduciary duties to thebuyer or seller. The designated sales agent Ifthe buyer and the sellerprovide their informed must explain that like the dual agent under whose consent in writing,the principals and the realestate supervision cannot provide undi- they function,they broker who represents both partiesas a dual agent .idedloyalty.A buyer or sellershould con- carefully may designate a sales agent torepresent the buyer sider thepossible consequences ofa dual re- ne- agency and another sales agent to represent thesellerto with designated sales agents before agree- purchase and of realestate.A sales lationship gotiate the sale ing tosuch representation.A seller orbuyer may agent works under the supervision of thereal estate Provide advance mformed consent to dual agency broker. With the informed consent of the buyer and with designated sales agentsby mdicating thesame the sellerin the designated sales agent forthe _ writing, on this form. buyer willfunction as thebuyer's agent representing isform was provided to me by (printname of licensee)of (i////AAf / fr9 prm name o company, inn or rokerage), a licensedrealestate broker A//8p acting inthe interest of the: dSeller as a (checkrelationship below) ( ) Buyer as a (check elationship below) Óeller's agent ( ) Buyer's agent ( ) Broker'sagent ( ) Broker's agent ( ) Dual agent ( ) Dual agent with designated sales agents For advance informed consent to eitherdual or dual with designated sales agentscomplete sec- agency agency tionbelow: ( ) Advance informed consent dual agency ( Advance informed consent to dualagency with designated sales agents Ifdual agent with designated salesagents isindicated above: is appointedto represent the buyer; and is appointedto represent the sellerin thistransaction. (IXWe) acknowledge receipt of a copyof thisdisclosure form: Signature of Buyer(s) and/or Seller(s): Date: CONFIDENTIAL HL00015187 HL OPP. - EXHlBIT 23 - PAGE 3