Kenneth Yustman Associates, Inc. v. Berman

248 A.D.2d 284, 670 N.Y.S.2d 74, 1998 N.Y. App. Div. LEXIS 3217

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1998
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered on or about February 6, 1997, which granted defendant’s motion to dismiss plaintiff’s complaint, unanimously affirmed, without costs.

We affirm for the reason advanced by defendant before the motion court, but never reached, that plaintiff’s complaint, even when supplemented by its affidavit, fails to allege a brokerage agreement between the parties (compare, Lanstar Intl. Realty v New York News, 206 AD2d 411, with Williams Real Estate Co. v Viking Penguin, 228 AD2d 233), and therefore does not state a cause of action (CPLR 3211 [a] [7]). We do not reach the issue of whether plaintiff had entered into a prohibited “net listing” agreement with the seller (see, 19 NYCRR 175.19).

Concur — Sullivan, J. P., Milonas, Rosenberger and Tom, JJ.