Commission Suit On Purchase by Assignment of 3rd Party Contract
| Was Broker Procuring Cause of Sale– Direct and Proximate Link? |
Kassin Sabbagh Realty LLC sought a brokerage commission from 125th St. Holding Co. LLC and 125th Street Bopaz LLC on a transaction of which it alleges it was the procuring cause. The Manhattan property located at 51 East 125th Street. Sabbagh made David Israel aware of the property on November 6, 2018. Subsequently, on February 25, 2019, Israel contacted Kassin about making an offer but Kassin informed Israel that the proposed offer was too low because the seller was seeking $13 million. Before Holding/Bopaz were able to make an offer, the seller entered into a contract to sell the property to a third party. However, before a closing took place, Kassin, acting as Holing/Bopaz’ broker, set up a meeting between Israel, the seller and the third-party purchaser. At the March 28, 2019 meeting, Kassin alleged that Israel proposed acquiring the property through the assignment of the third-party purchase agreement. Instead, Israel alleged that through the efforts of a different broker, it was able to purchase the property through the assignment of the third-party purchase agreement.
Holding/Bopaz and Israel moved for summary judgment dismissing the complaint and Supreme Court denied the motion. An appeal ensued.
In determining whether a broker is a procuring cause there must be a direct and proximate link, as distinguished from one that is indirect and remote, between the introduction by the broker and the consummation of the transaction. The appeals court found that Supreme Court correctly decided that issues of fact existed in the record to preclude summary judgment. Specifically, there were discrepancies in the record as to whether the assignment was discussed at the meeting and thus whether Kassin’s actions and efforts in setting up the March 28, 2019 meeting may have been a direct and proximate link to the subsequent purchase of the property via the assignment of the third-party contract. Significantly, the deal ultimately consummated here involved the assignment of a contract which existed at the time of the meetin