Futersak v. PerlFutersak v. Perl
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendants’ motion for summary judgment dismissing the complaint is granted, the plaintiff‘s cross motion for summary judgmеnt on its cause of action alleging breach of contract is denied, the order is modified accordingly, and the complaint is dismissed; and it is further;
Ordered that one bill of costs is awarded to the defendаnts.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the
On January 6, 2004, the plаintiff, who does not have a real estate broker‘s license, entered into an agreement with thе defendant Sheldon Perl, also known as Shloime Perl, pursuant to which he was entitled to a “finders fee” of 15% of any net profit realized from Perl‘s purchase and sale, or “flip,” of a certain parсel of real property. Perl then formed a limited liability company, the defendant 700 Rockaway, LLC, which entered into a contract with the seller of the property and ultimately obtained title. Although the property was resold for a profit shortly after title was obtained, payment was withheld from the plaintiff.
The plaintiff commenced this action against Perl and 700 Rockaway, LLC (hereinafter together the appellants), inter alia, to recover damages for breach of contract. The appellants moved for summary judgment, contending that, pursuant to
The Supreme Court denied the appellants’ motion and granted the plaintiff‘s cross motion. The Supreme Court concluded that
It is undisputed that the plaintiff was not a licensed real estate broker or salesperson on the date the cause of action allegedly arose. In support of their motion for summary judgment uрon the ground that the plaintiff‘s recovery is barred pursuant to
In opposition, the plaintiff failed to submit evidence sufficient to require a trial of any issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). He did not assert, let alone demonstrate, that the underlying transaction was anything more than the purchase and sale of real property, or that the services rendered were for any purpose other than facilitating that purchasе and sale (see Sorice v Du Bois, 25 AD2d 521 [1966]; Levinson v Genesse Assoc., 172 AD2d 400, 400 [1991]; cf. Weingast v Rialto Pastry Shop., 243 NY 113, 116 [1926]; Reiter v Greenberg, 21 NY2d 388, 392 [1968]; Eaton Assoc. v Highland Broadcasting Corp., 81 AD2d 603, 604 [1981]).
As the plaintiff is barred from recovery, the appellants’ motion for summary judgment dismissing the complaint should have been granted and the plaintiff‘s cross motion for summary judgment on its cause of action alleging breach of contract should have been denied. Rivera, J.P., Balkin, Lott and Austin, JJ., concur. [Prior Case History: 27 Misc 3d 897.]