Cooper v. Arbor Realty Trust, Inc.

2024 NY Slip Op 33483(U)

• Court: New York Supreme Court, New York County
• Decided: September 30, 2024
• Docket: Index No. 651611/2023
• Status: Unpublished

Opinion

Cooper v Arbor Realty Trust, Inc. 2024 NY Slip Op 33483(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 651611/2023 Judge: Louis L. Nock Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 651611/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LOUIS L. NOCK PART 38M Justice ---------------------------------------------------------------------------------X INDEX NO. 651611/2023 ADAM COOPER, 08/11/2023, Plaintiff, MOTION DATE 08/11/2023

-v- MOTION SEQ. NO. 001 002

ARBOR REALTY TRUST, INC., and MAURICE KAUFMAN, DECISION + ORDER ON Defendants. MOTION

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 20, 21, 22, 23, 24, 25, 32, 33, 35, 36, 37, 41, and 43 were read on this motion by the individual defendant to DISMISS THE COMPLAINT .

The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 9, 10, 11, 12, 13, 34, 38, 39, 40, and 42 were read on this motion by the corporate defendant to DISMISS THE COMPLAINT .

LOUIS L. NOCK, J.S.C.

Upon the foregoing documents, defendants’ motions to dismiss the complaint are granted

for the reasons set forth in the moving and reply papers (NYSCEF Doc. Nos. 10, 12, 21, 23, 25,

42-43) and the exhibits attached thereto, in which the court concurs, as summarized herein.

Plaintiff alleges that he entered into an agreement pursuant to which defendants would

pay him a finder’s fee for introducing nonparty Moshe Wechsler (“Wechsler”) to defendants,

leading to several deals between Wechsler and Arbor Realty Trust, Inc. (“Arbor”), which

plaintiff asserts should have resulted in fees paid to him. Defendants assert that any such

agreement is barred by the statute of frauds or by Real Property Law § 442-d, and that the

complaint otherwise fails to state a cause of action.

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“Every agreement, promise or undertaking is void, unless it or some note or

memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by

his lawful agent, if such agreement, promise or undertaking: 1. By its terms is not to be

performed within one year from the making thereof” or “10. Is a contract to pay compensation

for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting

or leasing of any real estate or interest therein” (General Obligations Law §§ 5-701 [a] [1], [10]).

Plaintiff admits in the complaint that the alleged finder’s fee agreement was never reduced to

writing, and that he does not know if Arbor was even aware of Maurice Kaufman’s discussions

with him (complaint, NYSCEF Doc. No. 1, ¶ 42; memorandum of law in opposition, NYSCEF

Doc. No. 40 at 18 n 15). Instead, he points to a series of text messages between himself and

defendant Kaufman that he claims are sufficient to satisfy the statute of frauds (complaint,

NYSCEF Doc. No. 1, ¶¶ 43, 51; NYSCEF Doc. No. 36). However, in order to satisfy the statute

of frauds, a memorandum must contain all of the necessary terms of the deal, including but not

limited to the rate of compensation (Davis & Mamber, Ltd. v Adrienne Vittadini, Inc., 212 AD2d

424, 424 [1st Dept 1995], citing Morris Cohon & Co. v Russell, 23 NY2d 569, 575 [1969]).

The text messages referenced by plaintiff show that the parties were not in agreement on

the rate of compensation or the circumstances under which plaintiff would be entitled to a

finder’s fee, nor do the text messages establish which of the defendants were meant to be

responsible for the finder’s fee. Plaintiff’s reference to his partial performance is also

unavailing. The partial performance exception to the statute of frauds is codified in General

Obligations Law § 5-703, and allows courts “to compel the specific performance of agreements

in cases of part performance” for conveyances and contracts involving real property, and does

not extend to contracts governed by General Obligations Law § 5-701 (Gural v Drasner, 114

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AD3d 25, 32 [1st Dept 2013] [“the law simply does not provide for or permit a part performance

exception for oral contracts other than those to which General Obligations Law § 5-703

applies”]).

As the first cause of action for breach of contract is barred by the statute of frauds, the

second cause of action for unjust enrichment must also be dismissed (Patrick Capital Markets,

LLC v Rabina Properties, LLC, 225 AD3d 525, 526 [1st Dept 2024] [“Plaintiff's repackaging of

its breach of contract claims under quasi-contractual theories does not overcome the statute of

frauds”]). The final cause of action seeks a declaration that defendants are “required to remit

payment of a Finder’s Fee on all Agency Loans consummated between Emerald and Arbor,

irrespective of whether a mortgage broker is involved” (complaint, NYSCEF Doc. No. 1 at 19-

20). As the contract is barred by the statute of frauds, plaintiff is not entitled to such a

declaration.

Accordingly, it is hereby

ORDERED that defendants’ motions to dismiss the complaint are granted; and it is

further

ADJUDGED and DECLARED that defendants are not required to remit payment of a

Finder’s Fee on all Agency Loans consummated between Emerald and Arbor, irrespective of

whether a mortgage broker is involved; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of

defendants dismissing the action.

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This constitutes the decision and order of the court.

ENTER:

9/30/2024 $SIG$ DATE LOUIS L. NOCK, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION: X GRANTED

SETTLE ORDER DENIED GRANTED IN PART

SUBMIT ORDER □ OTHER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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