Preview
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022
EXHIBIT 120
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022
From: Arlt,Lewis
Sent: Wed 9/10/2014 9:25 PM (GMT-04:00)
To: Dalton, Debra
Cc:
Bcc:
Subject: Re: Following Up
we can discuss tomorrow. but the easy answer is no, she was not. HL the company was acting
as a disclosed neutral dual agent, with Barbara and Susan each acting as designated dual agents,
owing fiduciary duties to their respective clients.
Lewis Arlt
Licensed Real Estate Associate Broker
Houlihan Lawrence
32 Popham Road
Scarsdale, NY 10583
(914) 723-8877 x16222
Debra"
On Sep 10, 2014, at 8:53 PM, "Dalton, wrote:
Let's discuss tomorrow
Debra M. Dalton
Associate Real Estate Broker
Senior Vice President
Houlihan Lawrence
Office: 914.220.7000
Mobile: 914.391.5144
Begin forwarded message:
From: William Phelps
Date: September 10, 2014 at 8:47:13 PM EDT
Debra"
To: "Dalton,
Cc: Kim Phelps
Subject: Re: Following Up
Dear Ms. Dalton,
Thank you for your email.
It hascome to my attention thatsince thisdeal was a Houlihan Lawrence exclusive, Susan Greenberg would
have been acting as a dual agent. Can you confirm that thiswas the case?
Sincerely,
William T. Phelps
CONFIDENTIAL HL00179632
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022
On Wed, 10, 2014 at 10:38 AM, Dalton, Debra
Sep
wrote:
I apologize for not getting back to you yesterday, but as I mentioned in my message I was at
home not feeling well. After we spoke last week I asked Lewis to put in writing his thoughts
surrounding the issue on your transaction. Lewis is an excellent communicator and I thought
itwas important for you to have the time to read his explanation. He has clearly spelled out
why we should be compensated for culminating your transaction. Looking back, Barbara
should have insisted with Susan that she present a pre qual letter but at the same time you
didn't instruct her to include this as part of the terms. We empathize with the challenges
your family experienced which is why we offered a credit to commission.
While I am sorry you are not pleased with our offer of $10,000 credit toward your
commission; we feel strongly that we have fulfilled our obligation according to our contract.
Debra Dalton
Senior Vice President
800 Westchester Avenue
Rye Brook, NY 10583
.914-391-5144 (cell)
ddalton@houlihanlawrence.com
---------- Forwarded message ----------
Lewis"
From: "Arlt,
Debra"
To: "Dalton,
Cc:
CONFIDENTIAL HL00179633
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022
Date: Fri, 5 Sep 2014 18:08:18 -0400
Subject: 7 Circle
Debbie,
In response to your questions around the negotiations at 7 Circle.
First, I humbly apologize for not responding to Mr. Phelps in the manner he anticipated. I
had spoken to Mrs. Phelps earlier when she called to raise concerns about the contract being
signed in a timely fashion, since itaffected their move to an apartment in New York. Shortly
after that, I spoke at length with Barbara and she and I agreed that she would circle back to
Mrs. Phelps, and share the fact that she and I had spoken, were on the same page, and
working together to try and find a viable solution. Later, when Mr. Phelps sent me his email,
I responded as quickly as I could, and then endeavored to meet again with Barbara and Susan
to gather additional pertinent facts. His twice-stated demand that he speak directly to my
superior dictated that he be granted that desire, so I passed him on to you. In retrospect, I
regret that a conversation on the general nature of things did not take place between us, in
order that the silence he evidently felt did not exacerbate his dissatisfaction with the
proceedings. I must say that I am not in the habit of stepping into situations when the agents
involved have not expressly requested me to, and I generally expect and trust that the agents
are working at their highest capacity to remedy problems. In this case, I was in close contact
with both Barbara and Susan. All selling and buying unfortunately creates stress, but until his
email I was not aware that these circumstances required me to become involved on an
ongoing basis.
I must however, take a littleexception to some of the characterizations included in Mr.
Phelps'
firstemail to me. While we endeavor to qualify all buyers interested in our listings,
and a mortgage pre-approval certainly counts as important, at the end of the day, no one
forced the Phelps to accept this offer, nor to sign a contract on it,ifthey didn't feel
comfortable. Susan - the buyer - was hard to determine that
Greenberg representing working
the buyers had the money to make the purchase, and, despite the multiple changes in terms,
was being given strong assurances from their legal representative that this was the case. The
Phelps'
attorney was given similar assurances. To characterize Ms. Greenberg's actions as
manipulative"
"hap-hazard, inaccurate and is unfair. She was proceeding with the facts as she
knew them. Was she aware that the buyers were going through difficult times? Surely. But
many buyers are. That doesn't automatically disqualify them from making purchases. And,
since Ms. Greenberg was in the employ of the buyers, she was in fact obliged not to disclose
their confidential information without their permission.
CONFIDENTIAL HL00179634
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022
My understanding is that Barbara advised the Phelps against signing a lease on their city
apartment prior to having the 7 Circle sales contract signed. I know they were under time
pressure, but signing the lease prior to contract signing was their choice and made against
Barbara's advice. There were also post-inspection issues regarding repairs which were agreed
to be made the Phelps. These repairs - while most for buyer - would
by likely necessary any
nevertheless customarily have been made after the contract was signed. In what appeared to
be an act of good faith, they were made earlier. But itwas a decision the Phelps made
weeks"
unilaterally. As to the issue of "losing the market for 6 while there was an
Acceptable Offer, itis true that some buyers shy away from making offers on properties with
accepted offers; but many do not. Many buyers with deals lose houses to new buyers who
make stronger offers in the face of an existing AO. The code of ethics requires the listing
office to disclose the existence of an AO to any broker seeking cooperation. So this was not a
Amidors'
fact that could have been kept secret. If the Phelps were not confident in the ability
to close the deal, they could at any time prior to contract signing have instructed Barbara and
their attorney to terminate this agreement. It appears that in the absence of other offers,
however, they were keen on making this deal work, and so moved forward.
Just to correct a misperception, when Ms. Greenberg showed a buyer around the house on
August 16, itwas not Toby, but another buyer to whom Susan was introducing the
down,"
property. As to Susan's "deliberately slowing the process this is patently untrue and
without any possible motive. The notion that she rides "quickly over protocols to achieve a
commission"
deal and doubtless increase her is equally without foundation or merit. When
the deal fell apart, Susan was the party who suffered most, since she lost all income to be
derived.
Deals fall apart every day, for various reasons. Selling and buying real estate involves
risk. We try to mitigate risk as much as possible, but sometimes clients simply do what they
wish, even against our better judgment and advice. Like Barbara, Susan was trying very hard
to make this deal stick together and to serve the interested parties. If her buyers ultimately
proved unable, itwas not for lack of Susan's labors.
We are all very saddened that the first deal did not materialize, and trust that the second deal,
brought by another agent in our office, while a lower number, will be consummated. We are
glad for the Phelps that itis still over the asking price and has strong terms.
Best,
Lewis
CONFIDENTIAL HL00179635
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022
Lewis Arlt
Licensed Real Estate Associate Broker
Brokerage Manager
Houlihan Lawrence
32 Popham Road
Scarsdale, NY 10583
Office 914-723-8877
Cell 914-309-5766
William Phelps
Headmaster
The British International School of New York
20 Waterside Plaza, New York, NY 10010
p: (212) 481-2700 |f (646) 607-5970 w.phelps@bis-ny.org
Visit Abercorn in London|Visit Abercorn TX
CONFIDENTIAL HL00179636
Preview
FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022 EXHIBIT 120 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022 From: Arlt,Lewis Sent: Wed 9/10/2014 9:25 PM (GMT-04:00) To: Dalton, Debra Cc: Bcc: Subject: Re: Following Up we can discuss tomorrow. but the easy answer is no, she was not. HL the company was acting as a disclosed neutral dual agent, with Barbara and Susan each acting as designated dual agents, owing fiduciary duties to their respective clients. Lewis Arlt Licensed Real Estate Associate Broker Houlihan Lawrence 32 Popham Road Scarsdale, NY 10583 (914) 723-8877 x16222 Debra" On Sep 10, 2014, at 8:53 PM, "Dalton, wrote: Let's discuss tomorrow Debra M. Dalton Associate Real Estate Broker Senior Vice President Houlihan Lawrence Office: 914.220.7000 Mobile: 914.391.5144 Begin forwarded message: From: William Phelps Date: September 10, 2014 at 8:47:13 PM EDT Debra" To: "Dalton, Cc: Kim Phelps Subject: Re: Following Up Dear Ms. Dalton, Thank you for your email. It hascome to my attention thatsince thisdeal was a Houlihan Lawrence exclusive, Susan Greenberg would have been acting as a dual agent. Can you confirm that thiswas the case? Sincerely, William T. Phelps CONFIDENTIAL HL00179632 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022 On Wed, 10, 2014 at 10:38 AM, Dalton, Debra Sep wrote: I apologize for not getting back to you yesterday, but as I mentioned in my message I was at home not feeling well. After we spoke last week I asked Lewis to put in writing his thoughts surrounding the issue on your transaction. Lewis is an excellent communicator and I thought itwas important for you to have the time to read his explanation. He has clearly spelled out why we should be compensated for culminating your transaction. Looking back, Barbara should have insisted with Susan that she present a pre qual letter but at the same time you didn't instruct her to include this as part of the terms. We empathize with the challenges your family experienced which is why we offered a credit to commission. While I am sorry you are not pleased with our offer of $10,000 credit toward your commission; we feel strongly that we have fulfilled our obligation according to our contract. Debra Dalton Senior Vice President 800 Westchester Avenue Rye Brook, NY 10583 .914-391-5144 (cell) ddalton@houlihanlawrence.com ---------- Forwarded message ---------- Lewis" From: "Arlt, Debra" To: "Dalton, Cc: CONFIDENTIAL HL00179633 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022 Date: Fri, 5 Sep 2014 18:08:18 -0400 Subject: 7 Circle Debbie, In response to your questions around the negotiations at 7 Circle. First, I humbly apologize for not responding to Mr. Phelps in the manner he anticipated. I had spoken to Mrs. Phelps earlier when she called to raise concerns about the contract being signed in a timely fashion, since itaffected their move to an apartment in New York. Shortly after that, I spoke at length with Barbara and she and I agreed that she would circle back to Mrs. Phelps, and share the fact that she and I had spoken, were on the same page, and working together to try and find a viable solution. Later, when Mr. Phelps sent me his email, I responded as quickly as I could, and then endeavored to meet again with Barbara and Susan to gather additional pertinent facts. His twice-stated demand that he speak directly to my superior dictated that he be granted that desire, so I passed him on to you. In retrospect, I regret that a conversation on the general nature of things did not take place between us, in order that the silence he evidently felt did not exacerbate his dissatisfaction with the proceedings. I must say that I am not in the habit of stepping into situations when the agents involved have not expressly requested me to, and I generally expect and trust that the agents are working at their highest capacity to remedy problems. In this case, I was in close contact with both Barbara and Susan. All selling and buying unfortunately creates stress, but until his email I was not aware that these circumstances required me to become involved on an ongoing basis. I must however, take a littleexception to some of the characterizations included in Mr. Phelps' firstemail to me. While we endeavor to qualify all buyers interested in our listings, and a mortgage pre-approval certainly counts as important, at the end of the day, no one forced the Phelps to accept this offer, nor to sign a contract on it,ifthey didn't feel comfortable. Susan - the buyer - was hard to determine that Greenberg representing working the buyers had the money to make the purchase, and, despite the multiple changes in terms, was being given strong assurances from their legal representative that this was the case. The Phelps' attorney was given similar assurances. To characterize Ms. Greenberg's actions as manipulative" "hap-hazard, inaccurate and is unfair. She was proceeding with the facts as she knew them. Was she aware that the buyers were going through difficult times? Surely. But many buyers are. That doesn't automatically disqualify them from making purchases. And, since Ms. Greenberg was in the employ of the buyers, she was in fact obliged not to disclose their confidential information without their permission. CONFIDENTIAL HL00179634 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022 My understanding is that Barbara advised the Phelps against signing a lease on their city apartment prior to having the 7 Circle sales contract signed. I know they were under time pressure, but signing the lease prior to contract signing was their choice and made against Barbara's advice. There were also post-inspection issues regarding repairs which were agreed to be made the Phelps. These repairs - while most for buyer - would by likely necessary any nevertheless customarily have been made after the contract was signed. In what appeared to be an act of good faith, they were made earlier. But itwas a decision the Phelps made weeks" unilaterally. As to the issue of "losing the market for 6 while there was an Acceptable Offer, itis true that some buyers shy away from making offers on properties with accepted offers; but many do not. Many buyers with deals lose houses to new buyers who make stronger offers in the face of an existing AO. The code of ethics requires the listing office to disclose the existence of an AO to any broker seeking cooperation. So this was not a Amidors' fact that could have been kept secret. If the Phelps were not confident in the ability to close the deal, they could at any time prior to contract signing have instructed Barbara and their attorney to terminate this agreement. It appears that in the absence of other offers, however, they were keen on making this deal work, and so moved forward. Just to correct a misperception, when Ms. Greenberg showed a buyer around the house on August 16, itwas not Toby, but another buyer to whom Susan was introducing the down," property. As to Susan's "deliberately slowing the process this is patently untrue and without any possible motive. The notion that she rides "quickly over protocols to achieve a commission" deal and doubtless increase her is equally without foundation or merit. When the deal fell apart, Susan was the party who suffered most, since she lost all income to be derived. Deals fall apart every day, for various reasons. Selling and buying real estate involves risk. We try to mitigate risk as much as possible, but sometimes clients simply do what they wish, even against our better judgment and advice. Like Barbara, Susan was trying very hard to make this deal stick together and to serve the interested parties. If her buyers ultimately proved unable, itwas not for lack of Susan's labors. We are all very saddened that the first deal did not materialize, and trust that the second deal, brought by another agent in our office, while a lower number, will be consummated. We are glad for the Phelps that itis still over the asking price and has strong terms. Best, Lewis CONFIDENTIAL HL00179635 FILED: WESTCHESTER COUNTY CLERK 03/23/2022 06:28 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1246 RECEIVED NYSCEF: 03/23/2022 Lewis Arlt Licensed Real Estate Associate Broker Brokerage Manager Houlihan Lawrence 32 Popham Road Scarsdale, NY 10583 Office 914-723-8877 Cell 914-309-5766 William Phelps Headmaster The British International School of New York 20 Waterside Plaza, New York, NY 10010 p: (212) 481-2700 |f (646) 607-5970 w.phelps@bis-ny.org Visit Abercorn in London|Visit Abercorn TX CONFIDENTIAL HL00179636