In this matter, Adam Leitman Bailey, P.C. represented a husband and wife who had recently purchased a home in the Hamptons, and were being sued for a broker’s commission. The client purchasers were baffled as they had limited involvement with the broker who was suing them, and ultimately used another broker to consummate the transaction.
The involvement of the suing broker/plaintiff in the action was limited to the following: sending email listings to our clients and meeting with our clients on two or three occasions to view homes. In fact, our clients were actually the ones who introduced the property they ultimately purchased (and was the subject of the litigation) to the suing broker, not the other way around.
After a month or two of emailing with the plaintiff and viewing a few homes with her, our clients ultimately felt that the plaintiff would not be able to close the deal for them on their desired property, as she was unable to gain any information from the listing agent as to the seller’s mindset on pricing or what an acceptable offer might be. Our clients lost confidence in the plaintiff and began to question where her primary loyalty rested, as her advice was not sound and with our clients’ best interests in mind. The clients never signed an agreement with the plaintiff. Also, the plaintiff worked for the same company as the listing agent and never had our clients sign the required dual agency disclosure.
Our clients formally advised the broker/plaintiff that they would no longer be viewing homes with her, and that they would be engaging another broker. That new broker was successful in consummating the transaction on our clients’ behalf and, as a result, obtained the commission. The original broker/plaintiff continued sending listings to our clients even after being told her services were no longer needed. Shortly after the home was sold to our clients, the original broker filed suit against our clients alleging that she was owed commission on the sale as the “procuring cause” for our clients’ purchase.
ALBPC jumped into action and prepared a comprehensive motion to dismiss, objecting to the frivolous allegations on numerous grounds, including (a) lack of written agency agreement, (b) no dual agency disclosure, (c) lack of capacity to sue (plaintiff sued in her own name, and only the brokerage company that she worked for is entitled to sue, and that agency had already collected a commission on the sale as the listing broker), (d) failure to properly name our clients in the action (plaintiff named them as defendants in their individual capacities and not in the LLC capacity in which they purchased the property), and (e) that the documentary evidence established that plaintiff was not the procuring cause of our clients’ purchase of the property. On this last point, ALBPC took the time to introduce each and every email between the plaintiff and defendants to establish that plaintiff did not introduce the premises to the defendants, and did not ever relay an offer on the defendants’ behalf, or engage in any contract negotiations. All of this was done by the second broker that our clients worked with, and who rightfully obtained a commission on the sale.
When presented with our motion, the plaintiff crumbled, and decided to withdraw her action altogether, without even attempting to oppose the motion. The case was then formally discontinued, and our clients are now able to fully enjoy their new home without any litigation looming overhead.
Adam Leitman Bailey, Rachel Sigmund McGinley, and John M. Desiderio represented the purchasers in this matter.