On November 26, 2021, Justice Masley of the New York County Commercial Division issued a decision in LHWS LLC v. S.L. Green Realty Corp., 2021 NY Slip Op. 32459(U), holding that a plaintiff adequately had alleged an entitlement to a commission on a property sale, explaining:
A real estate broker earns their commission when they produce a buyer prepared and capable to purchase the desired property at the terms set by the seller. The broker must be the procuring cause of the transaction to earn the commission. The procuring cause is a direct and proximate link between the introduction by the broker to completion of the transaction. A broker does not need to be the dominant force in the transaction, but they must do more than call the property to the attention of the buyer. The procuring cause goes beyond an amicable atmosphere or frame of mind. However, the broker need not negotiate the final terms of the transaction. Whether the broker is the procuring cause of a transaction is a factual inquiry to be determined by evidence.
. . .Defendant relies on Vasiliu v Miller, 2018 N.Y. Slip Op. 32487[U] [Sup Ct, New York County 2018], where the court dismissed a plaintiff broker’s claim because the allegations were based solely on the conveyance of non-public information about the availability of a property and a walk through, which the plaintiff did not attend. The court found that these facts fell short as a procuring cause as a matter of law on a motion to dismiss. Here, plaintiff has sufficiently alleged more involvement with the defendant and eventual buyer than in Vasiliu. Plaintiff alleges a relationship with defendant, connecting the defendant with Graff, serving as an intermediary in that relationship, and formulating the idea for the transactions that were eventually consummated. Therefore, plaintiff has sufficiently pied a direct and proximate link to the defendant’s transactions at the Properties concerning Graff to survive a motion to dismiss. Defendant also argues that plaintiff’s exclusive agency to sell the 710 Loan does not preclude defendant from negotiating directly with the other party because it is not an exclusive right to deal. Rather, defendant argues that exclusive agency protects the broker from a defendant engaging multiple brokers. Defendant relies on Rosenhaus Real Estate, LLC v S.A.C. Capital Mgt., Inc., 121 AD3d 409 [1st Dept 2014] to distinguish an exclusive agency and an exclusive right to deal. However, discovery had been completed in Rosenhaus and the motion before the court was for summary judgment, while here defendant has yet to answer. Plaintiff has sufficiently pied that it procured Graff as the buyer here.
(Internal citations omitted).