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 04/22/2024 05:55 PM INDEX NO. 60767/2018
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EXHIBIT 16
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EXHIBIT 25
FILED: WESTCHESTER
FILED: WESTCHESTER COUNTY
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Who Is
M
REALTORS
A
to Complianc
with the
Law of
Ag
FILED: WESTCHESTER
FILED: WESTCHESTER COUNTY
COUNTY CLERK
CLERK 04/22/2024
05/14/2019 05:55
05:40 PM
PM INDEX NO.
INDEX NO. 60767/2018
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WHO IS
A REALTORS®
COMPLIANC
THE LAW
First
Novemb
FILED: WESTCHESTER
FILED: WESTCHESTER COUNTY
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TABLE OF CONTENTS PREFACE
There are certain legal concepts with which ev-
I. Introduction........................ 1
ery practicing real
broker, estate appraiser and man-
II. What Is an Agent?.......... . . . . . . . . 2 ager must be thoroughly familiar. These legal con-
cepts establish the transactional framework within
III. How Are Agency Relationships which he must function and the limits beyond which
Created?................. . . . . . . . . . . 3 he cannot go without serious risk to himself and those
he serves.
IV. Duties Owed by an Agent to His
Principal . . . .... .......... . . .. . . . . . 4
These legal concepts include, of course, antitrust
V. What Is a Subagent? . . . . . . . . . . . .. .. . 7 with its mandate of a competitive marketplace. They
also include fair housing with its requirement of a
VI. Undisclosed Dual Agency: A Breach
housing market to which all persons have access
of an Agent's of Loyalty . . . . . . . 9
Duty regardless of their race, color, religion, sex or nation-
VII. Remedies for an Agent's al origin.
Breach of
Fiduciary Duty .... . . .......... . . . . . 10 "Agency"
The legal concept of with which this
VIII. How Dual Agencies Can Result by booklet is concerned is, however, bey ond question
"Accident" appli-
the most fundamental of all the legal concepts
A. A Broker cable to the real estate profession and professional. It
Purchasing Property Listed
is the very nature and function of the real estate bro-
with His Firm . . . . . . . ......... . . . 11
ker, appraiser and manager to be an agent. The law of
B. A Seller's Agent Future "species"
Accepting literally defines the and gives real
agency
Employment from a Buyer......... 12
estate practitioners their identity.
C. A Broker Representing the Buyer
Seeking Compensation from the This booklet is one component of a comprehen-
Seller............................ 13 sive effort by the National Association to assure that
REALTOR® understands the relation-
D. The Seller's Agent Leads the Buyer every Agency
ships available to him and those he seeks to serve. It
to Believe the Agent Is Representing
the Buyer is an effort overdue but never too late as long as
. . . . . . . . . ......... . . . w. 13
REALTORS® Seek to serve others rather than them-
IX. The Alternatives to Dual Agency: selves.
Single Agency or Subagency
A. Single Agency . . . . . . ............. 15 -William D. North
Executive Vice President
B. Subagency . . . . . . . . . . . . .... . . . . . . 19
NATIONAL ASSOCIATION OF REALTORS®
X. Conclusion ........................ 20
Sample Notice to Prospective
Real Estate Purchasers
FILED: WESTCHESTER
FILED: WESTCHESTER COUNTY
COUNTY CLERK
CLERK 04/22/2024
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PM INDEX NO.
INDEX NO. 60767/2018
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NYSCEF DOC.
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I. INTRODUCTION
The concept of an
when men agreed to act
Agency relationships are
occasions when we employ
and can be as complex as
services that are performed
society.
The agency relationship
broker and sellers and buyers
One of the reasons that the
REALTORS®
WaS formed at
to enhance the professionalism
by recognizing an agency
broker and his client, and
general on a real est
duty
sons, clients and customers
Given the constantly
and buyers for real estate
brokers'
change in capacity
there is a crucial need for
agency concepts and assum
brokers in today's market
crisis"
damental "identity
sellers and buyers. This
many factors, including,
• The consumer protection
severely limited the caveat
principle of the early comm
duties of discovery and
brokers.
•
The increasing complexity
tions, which has increased
buyers for specialized kno
• The perception
changing
ment as well as a means
• The number
increasing
FILED: WESTCHESTER
FILED: WESTCHESTER COUNTY
COUNTY CLERK
CLERK 04/22/2024
05/14/2019 05:55
05:40 PM
PM INDEX NO.
INDEX NO. 60767/2018
60767/2018
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 1852
404 RECEIVED NYSCEF:
RECEIVED NYSCEF: 04/22/2024
05/14/2019
democratic form of gov
subagen-
relationships created exclusive agency,
by bought and sold freely
and buyer agency. In still other instances, brokers
cy, sure because real estate
of hones-
confuse duties with general duties
fiduciary available to act as agen
misrepresent prop-
and fairness and a duty not to a
ty often complex and
erty's condition.
marketing and conveying
func-
A broker who is confused about his role,
or will transmit that confusion
tion, loyalty inevitably
to the public with whom he deals. Public confusion in
turn breeds mistrust and frustration, which eventually IH. HOW ARE AG
results increased liability, and
in litigation, RELATIONSHIPS
regulation.
This Handbook is designed to assist real estate
An agency relationship
brokers and salespeople m understanding the common "consensual"
relationship.
sell-
law of that applies to their dealings with
agency ate an agency relationship
and and the consequences that can beset a
ers buyers, to the agent of authority
real estate broker who breaches his agency duties,
to act. Formalities are
either or by design. By understanding
accidentally relationship. As a g
cy
their obligations, brokers will be better
clearly agency to create an
necessary
able to serve the general public and enhance their own
many states do require
professionahsm- brokers
real estate and
An agency relationship
tract, with the elements
sideration. Agency rela
H. WHAT IS AN AGENT? without any obligation
the agent. By the same
state in the Union licenses real estate
Every one to another
party part
brokers and salespeople. A person who acts on behalf
or confirm an re
agency
of others in buying, or real estate must
selling, leasing when a judge or a
jury
per-
first secure a real estate license. A person who
an
agency relationship
forms acts on behalf of others is also deemed to be an
whether compensation
An agen-
agent under the common law of every state.
cipal the
to alleged agen
is defined under the common law as
cy relationship weight, particularly if
follows: pensation is th
asserting
created
is the relation which
(1) Agency fiduciary
consent
The elements necess
results frorn the manifestation of
the tionship are defined by
one person to another that other shall
by
his behalf and subject to his control, between two parties sati
act on
and consent the other so to act. relationship, it will
by cy
of the label the parties
The one for whorn action is taken is the tionship. Likewise,
(2) sim
principal. their relationship an ag
FILED: WESTCHESTER
FILED: WESTCHESTER COUNTY
COUNTY CLERK
CLERK 04/22/2024
05/14/2019 05:55
05:40 PM
PM INDEX NO.
INDEX NO. 60767/2018
60767/2018
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 1852
404 RECEIVED NYSCEF:
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05/14/2019
•
Confidentiality
missible whether or not the parties set out •
consciously Reasonable care and
to create one. Likewise, the conduct of the parties can •
Accounting
create an even if the parties have
agency relationship
signed acknowledgment forms denying the existence
1. Loyalty-A du
of an agency. By the same token, the conduct of the
fundamental fiduciary
defeat the existence of an rela-
parties can agency principal. This o
duty
even if the parties have signed documents
tionship act at all times in
solely
to create an agency relationship.
purporting pal to the exclusion o
To summarize, an agency relationship is created
the broker's own self-inter
when:
of is a to
loyalty duty
of interest that might
• principal delegates the to per-
the authority to agent
ker's undivided loyalty
form acts on behalf of the principal;
Thus, a real estate brok
him from accepting
• the agent consents to the delegation.
whose interests compete
principal's interests.
An relationship does not require:
agency A classic example
a real estate brok
•
ty by
a writing
property listed with h
resells it at a profit. S
• contract
a .
fectly appropriate and
length."
arms But a fid
• compensation paid the principal to the agent. "stolen"
by a profit
Document Filed Date
April 22, 2024
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 04/22/2024 05:55 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1852 RECEIVED NYSCEF: 04/22/2024 EXHIBIT 16 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 EXHIBIT 25 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 Who Is M REALTORS A to Complianc with the Law of Ag FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 WHO IS A REALTORS® COMPLIANC THE LAW First Novemb FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 TABLE OF CONTENTS PREFACE There are certain legal concepts with which ev- I. Introduction........................ 1 ery practicing real broker, estate appraiser and man- II. What Is an Agent?.......... . . . . . . . . 2 ager must be thoroughly familiar. These legal con- cepts establish the transactional framework within III. How Are Agency Relationships which he must function and the limits beyond which Created?................. . . . . . . . . . . 3 he cannot go without serious risk to himself and those he serves. IV. Duties Owed by an Agent to His Principal . . . .... .......... . . .. . . . . . 4 These legal concepts include, of course, antitrust V. What Is a Subagent? . . . . . . . . . . . .. .. . 7 with its mandate of a competitive marketplace. They also include fair housing with its requirement of a VI. Undisclosed Dual Agency: A Breach housing market to which all persons have access of an Agent's of Loyalty . . . . . . . 9 Duty regardless of their race, color, religion, sex or nation- VII. Remedies for an Agent's al origin. Breach of Fiduciary Duty .... . . .......... . . . . . 10 "Agency" The legal concept of with which this VIII. How Dual Agencies Can Result by booklet is concerned is, however, bey ond question "Accident" appli- the most fundamental of all the legal concepts A. A Broker cable to the real estate profession and professional. It Purchasing Property Listed is the very nature and function of the real estate bro- with His Firm . . . . . . . ......... . . . 11 ker, appraiser and manager to be an agent. The law of B. A Seller's Agent Future "species" Accepting literally defines the and gives real agency Employment from a Buyer......... 12 estate practitioners their identity. C. A Broker Representing the Buyer Seeking Compensation from the This booklet is one component of a comprehen- Seller............................ 13 sive effort by the National Association to assure that REALTOR® understands the relation- D. The Seller's Agent Leads the Buyer every Agency ships available to him and those he seeks to serve. It to Believe the Agent Is Representing the Buyer is an effort overdue but never too late as long as . . . . . . . . . ......... . . . w. 13 REALTORS® Seek to serve others rather than them- IX. The Alternatives to Dual Agency: selves. Single Agency or Subagency A. Single Agency . . . . . . ............. 15 -William D. North Executive Vice President B. Subagency . . . . . . . . . . . . .... . . . . . . 19 NATIONAL ASSOCIATION OF REALTORS® X. Conclusion ........................ 20 Sample Notice to Prospective Real Estate Purchasers FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 I. INTRODUCTION The concept of an when men agreed to act Agency relationships are occasions when we employ and can be as complex as services that are performed society. The agency relationship broker and sellers and buyers One of the reasons that the REALTORS® WaS formed at to enhance the professionalism by recognizing an agency broker and his client, and general on a real est duty sons, clients and customers Given the constantly and buyers for real estate brokers' change in capacity there is a crucial need for agency concepts and assum brokers in today's market crisis" damental "identity sellers and buyers. This many factors, including, • The consumer protection severely limited the caveat principle of the early comm duties of discovery and brokers. • The increasing complexity tions, which has increased buyers for specialized kno • The perception changing ment as well as a means • The number increasing FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 democratic form of gov subagen- relationships created exclusive agency, by bought and sold freely and buyer agency. In still other instances, brokers cy, sure because real estate of hones- confuse duties with general duties fiduciary available to act as agen misrepresent prop- and fairness and a duty not to a ty often complex and erty's condition. marketing and conveying func- A broker who is confused about his role, or will transmit that confusion tion, loyalty inevitably to the public with whom he deals. Public confusion in turn breeds mistrust and frustration, which eventually IH. HOW ARE AG results increased liability, and in litigation, RELATIONSHIPS regulation. This Handbook is designed to assist real estate An agency relationship brokers and salespeople m understanding the common "consensual" relationship. sell- law of that applies to their dealings with agency ate an agency relationship and and the consequences that can beset a ers buyers, to the agent of authority real estate broker who breaches his agency duties, to act. Formalities are either or by design. By understanding accidentally relationship. As a g cy their obligations, brokers will be better clearly agency to create an necessary able to serve the general public and enhance their own many states do require professionahsm- brokers real estate and An agency relationship tract, with the elements sideration. Agency rela H. WHAT IS AN AGENT? without any obligation the agent. By the same state in the Union licenses real estate Every one to another party part brokers and salespeople. A person who acts on behalf or confirm an re agency of others in buying, or real estate must selling, leasing when a judge or a jury per- first secure a real estate license. A person who an agency relationship forms acts on behalf of others is also deemed to be an whether compensation An agen- agent under the common law of every state. cipal the to alleged agen is defined under the common law as cy relationship weight, particularly if follows: pensation is th asserting created is the relation which (1) Agency fiduciary consent The elements necess results frorn the manifestation of the tionship are defined by one person to another that other shall by his behalf and subject to his control, between two parties sati act on and consent the other so to act. relationship, it will by cy of the label the parties The one for whorn action is taken is the tionship. Likewise, (2) sim principal. their relationship an ag FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 04/22/2024 05/14/2019 05:55 05:40 PM PM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1852 404 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/22/2024 05/14/2019 • Confidentiality missible whether or not the parties set out • consciously Reasonable care and to create one. Likewise, the conduct of the parties can • Accounting create an even if the parties have agency relationship signed acknowledgment forms denying the existence 1. Loyalty-A du of an agency. By the same token, the conduct of the fundamental fiduciary defeat the existence of an rela- parties can agency principal. This o duty even if the parties have signed documents tionship act at all times in solely to create an agency relationship. purporting pal to the exclusion o To summarize, an agency relationship is created the broker's own self-inter when: of is a to loyalty duty of interest that might • principal delegates the to per- the authority to agent ker's undivided loyalty form acts on behalf of the principal; Thus, a real estate brok him from accepting • the agent consents to the delegation. whose interests compete principal's interests. An relationship does not require: agency A classic example a real estate brok • ty by a writing property listed with h resells it at a profit. S • contract a . fectly appropriate and length." arms But a fid • compensation paid the principal to the agent. "stolen" by a profit