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. 1155 RECEIVED NYSCEF: 03/22/2022
HOULIHAN LAWRENCE
OPPOSITION TO MOTION TO CERTIFY
EXHIBIT 43
HL OPP. - EXHIBIT 43 - PAGE 1
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1155 RECEIVED NYSCEF: 03/22/2022
NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER
THIS IS NOT A CONTRACT
New York statelaw requiresrealestate licensees who to account. A buyer's agent does not represent the
are acting as agents of buyers or sellersof property to interestsof theseller. The obligationsof a buyer's
advise the potential buyers or sellerswith whom they agent are also subject to any specificprovisions set
work of thenature of their and forth in an agreement between the agent and the buy-
agency relationship
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 the agent'sduties;(b) deal honestly, fairlyand in
agents. good faith;and (c)disclose allfacts known to the
agent materially affecting thebuyer's abilityand/or
Throughout the transactionyou may receive more
willingness to perform a contractto acquire seller's
than one disclosure form. The law may require each
that arenot mconsistent with the agents fi-
with Property
agent assisting in thetransaction to present you
duciary duties to thebuyer.
thisdisclosure form. A real estateagent is a person
qualified to advise about realestate.
BROKER'S AGENTS
Ifyou need legal,tax or other advice, consult with a
A broker's agent isan agent that cooperates or is en-
professional in thatfield.
gaged by a listingagent ora buyers agent (but does
not work forthe same firm as the agent
listing or
DISCLOSURE REGARDING REAL ESTATE
buyer's agent) to assistthelistingagent or buyer's
AGENCY RELATIONSHIPS respective-
agent in locating aproperty tosellor buy,
ly,for the listingagents selleror the buyer agents
SEER'S MENT rela-
buyer. The brokers agent does not have a direct
A sellets agent is anagent who is engaged a seller with the buyer or sellerand the buyer or sel-
by tionship
to represent the interests.
seller's The sellersagent lercannot provide instructions ordirection directlyto
does this by securing a buyer forthe sellers home at the broker's agent.The buyer and the seller therefore
a price and on terms acceptable to theseller.A sel- do not have vicarious for the actsof the bro-
liability
ler'sagent without the fidu- ker'sagent. The agent or buyer's agent do pro-
has, limitation, following listing
ciary dutiesto the seller:reasonable care, undivided vide direction and instructionto thebroker's agent
loyalty,confidentiality,full disclosure,obedience and and therefore the listingagent or buyer's agent will
duty to account. A seller'sagent does not represent have for
liability theacts of thebroker's 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 realestatebroker may represent both thebuyer and
ler.In dealings with the buyer, a sellets agent should
the sellerifboth the buyer and sellergive theirin-
(a)exercise reasonable skilland care m performance . .
sit-
formed consent m writing. Insuch a dualagency
of theagents duties; (b)deal honestly, fairlyand in
uation, theagent will not be able to provide the full
good faith;and (c) disclose allfactsknown tothe
range of fiduciary dutiesto the buyer and The
seller.
agent materially affecting thevalue ordesirability of
obligations of an agent are alsosubject to specif-
any
property, except as otherwise provided by law.
icprovisions setforth in an agreement between the
agent, and the buyer and seller.
An agent acting as a
BUYER'S AGENT
dual agent must explain carefully toboth the buyer
A buyer's agent isan agent who is engaged by a buy- and sellerthat the agent is actingforthe other party
er torepresent the buyer's interests.The buyer'sagent as well.The agent should alsoexplain the possible
does this the purchase of a home ata effectsof dual that con-
by negotiating representation, including by
price and on terms acceptable tothe buyer. A buyer's senting to thedual agency relationship the buyer and
agent has, without limitation,the following fiduciary sellerare giving up theirright to undivided loyalty. A
duties tothe buyer: reasonable undivided loyal- buyer or sellershould consider thepossible
care, carefully
ty,confidentiality,full disclosure,obedience and duty consequences ofa dual agency relationship before
CONFIDENTIAL HL00005816
HL OPP. - EXHIBIT 43 - PAGE 2
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1155 RECEIVED NYSCEF: 03/22/2022
agreeing to such representation. A seller orbuyer the interestsof and advocating on behalf of thebuyer
provide advance informed consent to dual agen- and the designated salesagent forthe sellerwillfunc-
may
cy by indicating the same on thisform. tion as theseller'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 designatedsales agent
Ifthe buyer and the sellerprovide theirinformed
must explam that likethe 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
vided loyalty.A buyer or sellershould con-
carefully
may designate a sales agent torepresent the buyer
* P°S.sibleconsequences ofa dual re-
another agent to represent the seller
to ne- agency
and sales
with designated sales agents before agree-
and sale of realestate.A sales lationship
gotiatethe purchase
ing tosuch representation. A seller orbuyer may
agent works under the supervision of the realestate
Provide advance mformed consent to dual agency
broker. With the informed consent of thebuyer and
with designated sales agents by mdicating the same
the sellerinwriting, the designated sales agent forthe
on this form.
buyer will function as the buyer'sagent representing
This fonn was rovided to me by , ÒttN K/N (printname of licensee)of
U / /JtÅ/fd/ff (printname of company, firm or brokerage), a licensed realestate broker
acting inthe interestof the:
Seller as a (check relationshipbelow) ( ) Buyer as a (check relationship below)
Seller'sagent ( ) Buyer's agent
( ) Broker's agent ( ) Broker's agent
( ) Dual agent
( ) Dual agent with designated sales agents
For advance informed consent to eitherdual or dual with designated sales agents complete sec-
agency agency
tionbelow:
(dAdvance informed consent dual agency
((Advance informed consent to dual agency with designated sales agents
Ifdual agent with designated salesagents isindicated above:
is appointed to representthe buyer; and
70/ f is appointed to representthe sellerin thistransaction.
(I)(We) acknowledge receipt of a co of thisdisclosure form:
S'
atureof Bu and/o elle
Date: ¿2. a Date:
CON FIDENTIAL HL00005817
HL OPP. - EXHIBIT 43 - PAGE 3
Document Filed Date
March 22, 2022
Case Filing Date
July 14, 2018
Category
Commercial Division
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1155 RECEIVED NYSCEF: 03/22/2022 HOULIHAN LAWRENCE OPPOSITION TO MOTION TO CERTIFY EXHIBIT 43 HL OPP. - EXHIBIT 43 - PAGE 1 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1155 RECEIVED NYSCEF: 03/22/2022 NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER THIS IS NOT A CONTRACT New York statelaw requiresrealestate licensees who to account. A buyer's agent does not represent the are acting as agents of buyers or sellersof property to interestsof theseller. The obligationsof a buyer's advise the potential buyers or sellerswith whom they agent are also subject to any specificprovisions set work of thenature of their and forth in an agreement between the agent and the buy- agency relationship 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 the agent'sduties;(b) deal honestly, fairlyand in agents. good faith;and (c)disclose allfacts known to the agent materially affecting thebuyer's abilityand/or Throughout the transactionyou may receive more willingness to perform a contractto acquire seller's than one disclosure form. The law may require each that arenot mconsistent with the agents fi- with Property agent assisting in thetransaction to present you duciary duties to thebuyer. thisdisclosure form. A real estateagent is a person qualified to advise about realestate. BROKER'S AGENTS Ifyou need legal,tax or other advice, consult with a A broker's agent isan agent that cooperates or is en- professional in thatfield. gaged by a listingagent ora buyers agent (but does not work forthe same firm as the agent listing or DISCLOSURE REGARDING REAL ESTATE buyer's agent) to assistthelistingagent or buyer's AGENCY RELATIONSHIPS respective- agent in locating aproperty tosellor buy, ly,for the listingagents selleror the buyer agents SEER'S MENT rela- buyer. The brokers agent does not have a direct A sellets agent is anagent who is engaged a seller with the buyer or sellerand the buyer or sel- by tionship to represent the interests. seller's The sellersagent lercannot provide instructions ordirection directlyto does this by securing a buyer forthe sellers home at the broker's agent.The buyer and the seller therefore a price and on terms acceptable to theseller.A sel- do not have vicarious for the actsof the bro- liability ler'sagent without the fidu- ker'sagent. The agent or buyer's agent do pro- has, limitation, following listing ciary dutiesto the seller:reasonable care, undivided vide direction and instructionto thebroker's agent loyalty,confidentiality,full disclosure,obedience and and therefore the listingagent or buyer's agent will duty to account. A seller'sagent does not represent have for liability theacts of thebroker's 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 realestatebroker may represent both thebuyer and ler.In dealings with the buyer, a sellets agent should the sellerifboth the buyer and sellergive theirin- (a)exercise reasonable skilland care m performance . . sit- formed consent m writing. Insuch a dualagency of theagents duties; (b)deal honestly, fairlyand in uation, theagent will not be able to provide the full good faith;and (c) disclose allfactsknown tothe range of fiduciary dutiesto the buyer and The seller. agent materially affecting thevalue ordesirability of obligations of an agent are alsosubject to specif- any property, except as otherwise provided by law. icprovisions setforth in an agreement between the agent, and the buyer and seller. An agent acting as a BUYER'S AGENT dual agent must explain carefully toboth the buyer A buyer's agent isan agent who is engaged by a buy- and sellerthat the agent is actingforthe other party er torepresent the buyer's interests.The buyer'sagent as well.The agent should alsoexplain the possible does this the purchase of a home ata effectsof dual that con- by negotiating representation, including by price and on terms acceptable tothe buyer. A buyer's senting to thedual agency relationship the buyer and agent has, without limitation,the following fiduciary sellerare giving up theirright to undivided loyalty. A duties tothe buyer: reasonable undivided loyal- buyer or sellershould consider thepossible care, carefully ty,confidentiality,full disclosure,obedience and duty consequences ofa dual agency relationship before CONFIDENTIAL HL00005816 HL OPP. - EXHIBIT 43 - PAGE 2 FILED: WESTCHESTER COUNTY CLERK 03/22/2022 05:03 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1155 RECEIVED NYSCEF: 03/22/2022 agreeing to such representation. A seller orbuyer the interestsof and advocating on behalf of thebuyer provide advance informed consent to dual agen- and the designated salesagent forthe sellerwillfunc- may cy by indicating the same on thisform. tion as theseller'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 designatedsales agent Ifthe buyer and the sellerprovide theirinformed must explam that likethe 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 vided loyalty.A buyer or sellershould con- carefully may designate a sales agent torepresent the buyer * P°S.sibleconsequences ofa dual re- another agent to represent the seller to ne- agency and sales with designated sales agents before agree- and sale of realestate.A sales lationship gotiatethe purchase ing tosuch representation. A seller orbuyer may agent works under the supervision of the realestate Provide advance mformed consent to dual agency broker. With the informed consent of thebuyer and with designated sales agents by mdicating the same the sellerinwriting, the designated sales agent forthe on this form. buyer will function as the buyer'sagent representing This fonn was rovided to me by , ÒttN K/N (printname of licensee)of U / /JtÅ/fd/ff (printname of company, firm or brokerage), a licensed realestate broker acting inthe interestof the: Seller as a (check relationshipbelow) ( ) Buyer as a (check relationship below) Seller'sagent ( ) Buyer's agent ( ) Broker's agent ( ) Broker's agent ( ) Dual agent ( ) Dual agent with designated sales agents For advance informed consent to eitherdual or dual with designated sales agents complete sec- agency agency tionbelow: (dAdvance informed consent dual agency ((Advance informed consent to dual agency with designated sales agents Ifdual agent with designated salesagents isindicated above: is appointed to representthe buyer; and 70/ f is appointed to representthe sellerin thistransaction. (I)(We) acknowledge receipt of a co of thisdisclosure form: S' atureof Bu and/o elle Date: ¿2. a Date: CON FIDENTIAL HL00005817 HL OPP. - EXHIBIT 43 - PAGE 3