Preview
FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018
SUPREME COURT STATE OF NEW YORK
COUNTY OF WESTCHESTER
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Houlihan/Lawrence Inc.,
Plaintiff,
-against-
Index No : 67008/2016
Adriana DeStefano, Antonio DeStefano, Arcangelo
DeStefano, Jerry DeStefano, Joseph DeStefano, Ursula
DeStefano, and Sheldon Watson a/k/a Shaldon Watson,
a/k/a Shaldon Harding,
Defendants.
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MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Statement of Facts
The facts supporting Defendant Adriana DeStefano’s opposition to this motion have
been fully set forth in the accompanying testimony of Defendant Adriana DeStefano,
Defendant Sheldon Watson, and the Affirmation of James Rocco Monteleon, Esq. (affirmed
on October 31, 2018), and in the Exhibits annexed hereto. In the interest of judicial
economy, the facts will not be repeated herein but shall be incorporated by reference into
the legal argument that follows.
POINT I
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE
DENIED BASED ON PLAINTIFF’S FAILURE TO DEMONSTRATE
THE ABSENCE OF A GENUINE ISSUE OF MATERIAL FACT
Plaintiff’s motion for summary judgment should be denied as a matter of law. CPLR
3212[b] provides in pertinent part:
The motion shall be granted if, upon all papers and proof
submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing
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judgment in favor of any party. Except as provided in
subdivision [c] of this rule the motion shall be denied if any
party shall show facts sufficient to require a trial of any issue of
fact (Emphasis added).
Here, clear issues of fact warrant denial of Plaintiff’s motion for summary judgment.
These include numerous factual issues regarding the outstanding whether there was (1) a
valid listing agreement and (2) whether Plaintiff’s actions had anything to with the Hardings’
purchasing the property.
The summary judgment standard imposes the initial burden on the moving party to
demonstrate the absence of a genuine issue of material fact (Zuckerman v. New York, 49 NY2d
557, 560 [1980]). Summary judgment permits a party to show, by affidavit or other evidence,
there is no material issue of fact to be tried, and that judgment may be directed as a matter
of law, thereby avoiding needless litigation cost and delay. (See Brill v. City of New York, 2
NY3d 648 [2004]; Andre v. Pomeroy, 35 NY2d 361, 363 [1974]). If a party moving for
summary judgment carries its initial burden, the opposing party must demonstrate a
genuine issue of material fact. (Santos v. Murdock, 243 F3d 681,683 [2d Cir. 2001]).
A dispute is "genuine" when "the evidence is such that a reasonable jury could
return a verdict for the non-moving party. (Anderson v. Liberty Lobby, Inc., 477 US 242, 248
[1986]). It is only when absolutely no "material and triable issues of fact" are presented,
should a motion for summary judgment must be granted. (Sillman v. Twentieth Century-Fox
Film Corp., 3 NY2d 395,404 [1957]; Finn v. Doran, 2009 NY Slip Op 32182 [U] [Sup Ct,
Queens Co., 2009]). Furthermore, the court may not weigh credibility issues on a motion
for summary judgment; where credibility is at issue, the motion should be denied. (See,
Mickelson v. Babcock, 190 AD2d 1037 [1993]). Finally, all doubts about whether or not
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there is an "issue of fact" must be resolved against the moving party. (See, Phillips v. Joseph
Kantor & Co., 31 NY2d 307, 338 [1972]).
The deposition testimony of both Defendant Adriana DeStefano and Defendant
Watson sets forth facts that contradict the affirmation of Plaintiff’s attorney, Jeffrey Briem
and likewise the deposition testimony of Geoff Berry, Plaintiff’s brokerage manager.
In her deposition testimony, Adriana DeStefano sets forth facts that in August 2014,
after her mother, Rita DeStefano, passed away, she and her five (5) siblings, Defendants
Antonio DeStefano, Arcangelo DeStefano, Jerry DeStefano, Joseph DeStefano, and Ursula
DeStefano were owners of the property located at 36 Primrose Avenue, Mount Vernon,
New York.
DeStefano also sets forth facts that establish that on or about April 23, 2015, prior to
signing Plaintiff’s listing agreement, Plaintiff’s agent, Matthew Gredell was on notice that
before there could be a valid listing agreement, Plaintiff needed either to procure (1) Jerry
DeStefano’s signature on the listing as a co-executor or (2) all the siblings’ signature on the
listing agreement or their agreement to sell the property. Despite Gredell’s affirmative
assurance he would get Jerry DeStefano’s signature on the listing agreement, before placing
the property on the market, he failed to do so. Defendant Jerry DeStefano, co-executor of
the last will and testament of Rita DeStefano never signed the listing agreement
Defendant Watson in his deposition testimony sets forth facts that establish Plaintiff
did not procure Watson or his parents, Eaton Harding and Orlean Harding as the
purchasers of the 36 Primrose Avenue, Mount Vernon, New York. In his deposition
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testimony, Watson avers that he visited the property based on information his girlfriend
gave him. Prior to visiting the property, he never spoke with Gerdell or anyone from
Houlihan/Lawrence and he did not recall seeing a for sale sign on the property when he
arrived. While at the property, he witnessed, Adriana and Defendant Ursula DeStefano
arguing about the sale of the property and whether they had a realtor. Watson heard Ursula
tell Gredell “we don’t have a realtor.” Which Gredell did not dispute nor disagree with, in
fact, Gredell did “nothing, he just listened.” Gredell was at the property only for Watson’s
first visit. On the first visit, Watson was only shown the first floor. Watson refused to speak
with Gredell calling him “slim-ballish.” As such, defendant Adriana DeStefano has raised an
“issues of fact” warranting denial of Plaintiff’s motion, pursuant to CPLR 3212[b].
Plaintiff’s listing agreement with only Adriana DeStefano’s signature, clearly creates
an “issue of material fact” regarding the purported validity of the listing agreement where
Adriana DeStefano and Jerry DeStefano were co-executors of their mother’s last will and
testament. Where there is conflicting testimony before the court on a motion for summary
judgment such as this, the court must find a "genuine issue of material fact" precluding
summary judgment (see Clearwater Realty Co. v. Hernandez, 256 AD2d 100 [1st Dept
1998]). It has long been held that, since summary judgment is such a drastic remedy, the
procedural equivalent of a trial, it cannot be resolved on conflicting testimony which is
deemed by themselves to raise a triable issue of fact (see, Epstein v. Scally, 99 AD2d 713[1st
1984]; Friedman v. Universal Mercerizing Co., 238 App Div. 805 [2nd Dept 1933]; Berson
Sydeman Co. v. Waumbeak Mfg. Co., 2212 App. Div. 422 [1st Dept 1925]).
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Here the testimony of Adriana DeStefano and Sheldon Watson clearly conflict with
affirmation of Plaintiff’s attorney, Jeffrey Briem and likewise the deposition testimony of
Geoff Berry, Plaintiff’s brokerage manager, thus raising issues of fact regarding the the
validity of the listing agreement and the procurement of the purchasers of the property.
Where facts are contested, and the issues are one of credibility of the parties or their
witnesses, summary judgment should be denied (see, S.J. Capelin Assoc., Inc. v. Globe Mfg.
Corp., 34 NY2d 338 [1974]). Based on plaintiff’s failure to meet the statutory standard as
set forth in CPLR 3212[b], Plaintiff’s motion for summary judgment should be denied in its
entirety.
POINT II
BECAUSE PLAINTIFF HAD ACTUAL KNOWLEDGE THAT
DEFENDANT ADRIANA DESTEFANO WAS NOT THE SOLE
OWNER OF THE PROPERTY AND FAILED TO PROCURE JERRY
DESTEFANO’S SIGNATURE ON THE LIST AGREEMENT
PLAINTIFF IS BARRED FROM RECOVERY OF COMMISSIONS.
Plaintiff’s claim for $31,250 in commissions is unsupported by case law. Where only
one owner of property retains a broker to sell property and the broker “actually knows that
there are other owners who may not acquiesce in the sale he acts at his peril and
jeopardizes his commission notwithstanding that he produces a ready, willing and able
buyer” (U-Buy Realty, Inc. v Aliota, 151 Misc 2d 485, 490 [Civ Ct 1991]).
Here the facts are clear, Plaintiff’s agent, Matthew Gredell was on notice that before
there could be a valid listing agreement, Plaintiff needed either to procure (1) Jerry
DeStefano’s signature on the listing as a co-executor or (2) all the siblings’ signature on the
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listing agreement or their agreement to sell the property. Despite Gredell’s affirmative
assurance he would get Jerry DeStefano’s signature on the listing agreement, before placing
the property on the market, he failed to do so. Defendant Jerry DeStefano, co-executor of
the last will and testament of Rita DeStefano never signed the listing agreement.
When Plaintiff agent, Matthew Gredell met with Defendant Adriana DeStefano and
Defendant Ursula DeStefano Gredell actually knew that Defendant Adriana DeStefano was
not the sole owner of 36 Primrose Avenue. At a minimum, Gredell knew that he either
needed Jerry DeStefano’s signature on the listing agreement or he need all the siblings’
signature on the listing agreement or their agreement to sell the property.
Plaintiff’s failure to procure said signature(s) or agreement precludes summary
judgment.
Conclusion
For the reasons set forth above Plaintiff’s motion for summary judgment should be
denied in its entirety.
Respectfully Submitted,
/s/ James Rocco Monteleon
JAMES ROCCO MONTELEON, ESQ
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Preview
FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018 SUPREME COURT STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------------X Houlihan/Lawrence Inc., Plaintiff, -against- Index No : 67008/2016 Adriana DeStefano, Antonio DeStefano, Arcangelo DeStefano, Jerry DeStefano, Joseph DeStefano, Ursula DeStefano, and Sheldon Watson a/k/a Shaldon Watson, a/k/a Shaldon Harding, Defendants. ------------------------------------------------------------------------X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Statement of Facts The facts supporting Defendant Adriana DeStefano’s opposition to this motion have been fully set forth in the accompanying testimony of Defendant Adriana DeStefano, Defendant Sheldon Watson, and the Affirmation of James Rocco Monteleon, Esq. (affirmed on October 31, 2018), and in the Exhibits annexed hereto. In the interest of judicial economy, the facts will not be repeated herein but shall be incorporated by reference into the legal argument that follows. POINT I PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BASED ON PLAINTIFF’S FAILURE TO DEMONSTRATE THE ABSENCE OF A GENUINE ISSUE OF MATERIAL FACT Plaintiff’s motion for summary judgment should be denied as a matter of law. CPLR 3212[b] provides in pertinent part: The motion shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing 1 of 6 FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018 judgment in favor of any party. Except as provided in subdivision [c] of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact (Emphasis added). Here, clear issues of fact warrant denial of Plaintiff’s motion for summary judgment. These include numerous factual issues regarding the outstanding whether there was (1) a valid listing agreement and (2) whether Plaintiff’s actions had anything to with the Hardings’ purchasing the property. The summary judgment standard imposes the initial burden on the moving party to demonstrate the absence of a genuine issue of material fact (Zuckerman v. New York, 49 NY2d 557, 560 [1980]). Summary judgment permits a party to show, by affidavit or other evidence, there is no material issue of fact to be tried, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay. (See Brill v. City of New York, 2 NY3d 648 [2004]; Andre v. Pomeroy, 35 NY2d 361, 363 [1974]). If a party moving for summary judgment carries its initial burden, the opposing party must demonstrate a genuine issue of material fact. (Santos v. Murdock, 243 F3d 681,683 [2d Cir. 2001]). A dispute is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the non-moving party. (Anderson v. Liberty Lobby, Inc., 477 US 242, 248 [1986]). It is only when absolutely no "material and triable issues of fact" are presented, should a motion for summary judgment must be granted. (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395,404 [1957]; Finn v. Doran, 2009 NY Slip Op 32182 [U] [Sup Ct, Queens Co., 2009]). Furthermore, the court may not weigh credibility issues on a motion for summary judgment; where credibility is at issue, the motion should be denied. (See, Mickelson v. Babcock, 190 AD2d 1037 [1993]). Finally, all doubts about whether or not 2 of 6 FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018 there is an "issue of fact" must be resolved against the moving party. (See, Phillips v. Joseph Kantor & Co., 31 NY2d 307, 338 [1972]). The deposition testimony of both Defendant Adriana DeStefano and Defendant Watson sets forth facts that contradict the affirmation of Plaintiff’s attorney, Jeffrey Briem and likewise the deposition testimony of Geoff Berry, Plaintiff’s brokerage manager. In her deposition testimony, Adriana DeStefano sets forth facts that in August 2014, after her mother, Rita DeStefano, passed away, she and her five (5) siblings, Defendants Antonio DeStefano, Arcangelo DeStefano, Jerry DeStefano, Joseph DeStefano, and Ursula DeStefano were owners of the property located at 36 Primrose Avenue, Mount Vernon, New York. DeStefano also sets forth facts that establish that on or about April 23, 2015, prior to signing Plaintiff’s listing agreement, Plaintiff’s agent, Matthew Gredell was on notice that before there could be a valid listing agreement, Plaintiff needed either to procure (1) Jerry DeStefano’s signature on the listing as a co-executor or (2) all the siblings’ signature on the listing agreement or their agreement to sell the property. Despite Gredell’s affirmative assurance he would get Jerry DeStefano’s signature on the listing agreement, before placing the property on the market, he failed to do so. Defendant Jerry DeStefano, co-executor of the last will and testament of Rita DeStefano never signed the listing agreement Defendant Watson in his deposition testimony sets forth facts that establish Plaintiff did not procure Watson or his parents, Eaton Harding and Orlean Harding as the purchasers of the 36 Primrose Avenue, Mount Vernon, New York. In his deposition 3 of 6 FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018 testimony, Watson avers that he visited the property based on information his girlfriend gave him. Prior to visiting the property, he never spoke with Gerdell or anyone from Houlihan/Lawrence and he did not recall seeing a for sale sign on the property when he arrived. While at the property, he witnessed, Adriana and Defendant Ursula DeStefano arguing about the sale of the property and whether they had a realtor. Watson heard Ursula tell Gredell “we don’t have a realtor.” Which Gredell did not dispute nor disagree with, in fact, Gredell did “nothing, he just listened.” Gredell was at the property only for Watson’s first visit. On the first visit, Watson was only shown the first floor. Watson refused to speak with Gredell calling him “slim-ballish.” As such, defendant Adriana DeStefano has raised an “issues of fact” warranting denial of Plaintiff’s motion, pursuant to CPLR 3212[b]. Plaintiff’s listing agreement with only Adriana DeStefano’s signature, clearly creates an “issue of material fact” regarding the purported validity of the listing agreement where Adriana DeStefano and Jerry DeStefano were co-executors of their mother’s last will and testament. Where there is conflicting testimony before the court on a motion for summary judgment such as this, the court must find a "genuine issue of material fact" precluding summary judgment (see Clearwater Realty Co. v. Hernandez, 256 AD2d 100 [1st Dept 1998]). It has long been held that, since summary judgment is such a drastic remedy, the procedural equivalent of a trial, it cannot be resolved on conflicting testimony which is deemed by themselves to raise a triable issue of fact (see, Epstein v. Scally, 99 AD2d 713[1st 1984]; Friedman v. Universal Mercerizing Co., 238 App Div. 805 [2nd Dept 1933]; Berson Sydeman Co. v. Waumbeak Mfg. Co., 2212 App. Div. 422 [1st Dept 1925]). 4 of 6 FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018 Here the testimony of Adriana DeStefano and Sheldon Watson clearly conflict with affirmation of Plaintiff’s attorney, Jeffrey Briem and likewise the deposition testimony of Geoff Berry, Plaintiff’s brokerage manager, thus raising issues of fact regarding the the validity of the listing agreement and the procurement of the purchasers of the property. Where facts are contested, and the issues are one of credibility of the parties or their witnesses, summary judgment should be denied (see, S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 NY2d 338 [1974]). Based on plaintiff’s failure to meet the statutory standard as set forth in CPLR 3212[b], Plaintiff’s motion for summary judgment should be denied in its entirety. POINT II BECAUSE PLAINTIFF HAD ACTUAL KNOWLEDGE THAT DEFENDANT ADRIANA DESTEFANO WAS NOT THE SOLE OWNER OF THE PROPERTY AND FAILED TO PROCURE JERRY DESTEFANO’S SIGNATURE ON THE LIST AGREEMENT PLAINTIFF IS BARRED FROM RECOVERY OF COMMISSIONS. Plaintiff’s claim for $31,250 in commissions is unsupported by case law. Where only one owner of property retains a broker to sell property and the broker “actually knows that there are other owners who may not acquiesce in the sale he acts at his peril and jeopardizes his commission notwithstanding that he produces a ready, willing and able buyer” (U-Buy Realty, Inc. v Aliota, 151 Misc 2d 485, 490 [Civ Ct 1991]). Here the facts are clear, Plaintiff’s agent, Matthew Gredell was on notice that before there could be a valid listing agreement, Plaintiff needed either to procure (1) Jerry DeStefano’s signature on the listing as a co-executor or (2) all the siblings’ signature on the 5 of 6 FILED: WESTCHESTER COUNTY CLERK 11/01/2018 02:07 AM INDEX NO. 67008/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/01/2018 listing agreement or their agreement to sell the property. Despite Gredell’s affirmative assurance he would get Jerry DeStefano’s signature on the listing agreement, before placing the property on the market, he failed to do so. Defendant Jerry DeStefano, co-executor of the last will and testament of Rita DeStefano never signed the listing agreement. When Plaintiff agent, Matthew Gredell met with Defendant Adriana DeStefano and Defendant Ursula DeStefano Gredell actually knew that Defendant Adriana DeStefano was not the sole owner of 36 Primrose Avenue. At a minimum, Gredell knew that he either needed Jerry DeStefano’s signature on the listing agreement or he need all the siblings’ signature on the listing agreement or their agreement to sell the property. Plaintiff’s failure to procure said signature(s) or agreement precludes summary judgment. Conclusion For the reasons set forth above Plaintiff’s motion for summary judgment should be denied in its entirety. Respectfully Submitted, /s/ James Rocco Monteleon JAMES ROCCO MONTELEON, ESQ 6 of 6