Wednesday, January 30, 2013

Fidelity Business Brokers v. George A. Gamaldi case brief

Fidelity Business Brokers v. George A. Gamaldi190 A.D.2d 709; 593 N.Y.S.2d 315
FACTS: The real estate broker allegedly entered into an oral agreement with the sellers whereby the real estate broker was to procure a buyer for certain grocery stores and real property owned and operated by the sellers. On appeal of the denial of the sellers' cross-motion for summary judgment, the court affirmed the denial.

PROCEDURAL HISTORY: Appellant sellers sought review of the decision of the Supreme Court, Nassau County (New York), which denied their cross-motion for summary judgment to dismiss respondent real estate broker's complaint against the sellers. The sellers also sought review of the denial of their motion for re-argument. The real estate broker sought to recover a commission for services rendered in connection with procuring a buyer for the sellers.

-The court found that the real estate broker's action for commission due was not barred by the statute of frauds because the contract in question did not have to be in writing.
-The contract did not have to be in writing because one party was a licensed real estate broker, and the contract was expressly exempt from the requirements of the statute of frauds.
-Therefore, neither recovery of damages for breach of contract, nor a claim of quantum meruit, was precluded by the absence of a signed writing.
-Futhermore, the breach of contract cause of action was sufficiently pleaded to withstand a motion to dismiss under N.Y. C.P.L.R. 3211(a)(7).
-Summary judgment was properly denied because the sellers failed to demonstrate that there were no material issues of fact.

OUTCOME: The court dismissed the sellers' appeal from the order denying re-argument and also affirmed the order denying the sellers' cross-motion for summary judgment.

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