Saunders Ventures Inc. d/b/a SAUNDERS AND ASSOCIATES, Plaintiff,
Susan Davidson Morrow, AND LAURA DAVIDSON TWEEDY AS SUCCESSOR TRUSTEES OF THE SHIRLEY V. DAVIDSON FAMILY TRUST AND DOUGLAS ELLIMAN, LLC, d/b/a PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE and B & H ASSOCIATES of NY, LLC d/b/a PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE, Defendants.
ANTHONY T. CONFORTI, ESQ. Attorney for Plaintiff.
AT LAW Attorneys for Defendants By: Dennis Valet, Esq.
matter sub judice is an action sounding in breach of
contract arising from a dispute over claimed commissions
between two real estate agencies. To resolve the competing
positions of the Plaintiff Saunders Ventures Inc.
(hereinafter referred to as Saunders) and the Defendant B
& H Associates of NY, LLC d/b/a Prudential Douglas
Elliman Real Estate (hereinafter referred to as B &
H/Douglas Elliman) on questions of law and fact, the parties
submitted to a non-jury trial before the Court.
to the receipt of testimony, the parties stipulated to the
following: (1) that both the Plaintiff and Defendant are
licensed real estate brokers; and (2) the contract for sale
of the real property that is the basis of this dispute and
the co-brokerage agreement signed by the parties was entered
the Court would be remiss if it did not commend Counsel,
Messrs. Conforti and Valet, for the able manner in which they
represented their clients at trial and the scholarship in
their respective post trial briefs. Such advocates honor the
profession of law.
called Daniel Casey Shedrick as its first witness. Mr.
Shedrick is the managing partner of "And So It Goes,
LLC., " the entity that purchased 98 Day Lily Lane,
Bridgehampton, NY ("the property"). Mr. Shedrick
testified as to his professional relationship with Ms.
Brennan-Hagen, an officer at Saunders, and the circumstances
surrounding the purchase of the locus in quo. He
explained that he asked Ms. Brennan-Hagen to find information
on the property including the comps, covenants, and
restrictions so that he could better evaluate the overall
value of the property. He also noted on multiple occasions
that his business protocol is to deal principal to principal.
In this matter however, he could not do so because the
principals were unavailable. Instead, he dealt with their
attorney, Mr. Tom Osborne.
Shedrick also discussed the Residential Contract for Sale
(Plaintiff's Exhibit 1). The Contract (as originally
drafted) only had Prudential Douglas Elliman inserted as the
Seller's agent at paragraph 27. Mr. Shedrick, after a
discussion with his attorney Wayne Bruyn, added Saunders and
Associates to the paragraph. After adding Saunders, Mr.
Shedrick signed the Contract and tendered a down payment. He
also testified that he had conversations with Melissa Osborne
and Jeanine Edington about Ms. Brennan-Hagen's
compensation. According to Mr. Shedrick, the closing date was
originally set for July 31st, 2011. The failure to go forward
on that date was because no one provided a compensation
provision for Ms. Brennan-Hagen. The closing eventually did
occur on August 4th, 2011, but Mr. Shedrick did not believe
that Saunders was compensated for the closing. Most
importantly, Mr. Shedrick added that if not for Ms.
Brennan-Hagen's services, he would not have purchased the
cross-examination, Mr. Shedrick testified that he had not
conducted due diligence on the property himself and could not
get the due diligence from B & H. Mr. Shedrick next noted
that he tried to obtain information from the Defendant in
2011, when he was first interested in acquiring the property.
B & H, however, was unable to define what the covenants,
restrictions, and the closing costs were. Mr. Shedrick
understood that B & H represented the Sellers but stated
that he did not understand that Ms. Brennan Hagen represented
the interests of the Sellers. In an affidavit prepared prior
to trial, however, Mr. Shedrick averred that Ms.
Brennan-Hagen actively represented the interest of the
Sellers. Mr. Shedrick further testified that he expected Ms.
Brennan-Hagen to earn her commission from the Seller. He also
indicated that he never negotiated a commission in any of his
property acquisitions. Moreover, Mr. Shedrick did not ask Ms.
Brennan-Hagen to negotiate on his behalf, reiterating his
practice of negotiating principal to principal. He testified,
however, that he inserted Saunders into the contract because
there was a written agreement between himself and Jeanine
Edington, the Douglas Elliman representative, to split the
Brennan-Hagen also testified for the Plaintiff. Ms.
Brennan-Hagen testified that she had a professional
relationship with Mr. Shedrick for twenty-one years and
corroborated his method of dealing directly with owners or
listing brokers. In regards to the property, she testified
that Mr. Shedrick discussed the property with her in the
Spring of 2011. Ms. Brennan-Hagen explained that she dealt
with Ms. Edington of B & H who was only able to provide
her with limited information. This obliged Ms. Brennan-Hagen
to gather more information on her own to determine the
property's value. To achieve this, she testified that she
performed investigations as to the surrounding properties for
Mr. Shedrick and notified him of certain restrictions and
surrounding property values.
her discussions with Mr. Shedrick, Ms. Brennan-Hagen
testified that she provided him with a legally required
disclosure and told him that Saunders was a seller's
agent. She also discussed compensation with Mr. Shedrick and
told him that she would be compensated through the Seller
even though it was exclusive with Elliman. The rationale for
this statement was the status of the proposed sale being a
"co-broke." In an e-mail to Melissa Osborne,
Jeanine Edington, and Wayne Bruyn, Mr. Shedrick told Ms.
Brennan-Hagen that he executed a contract to sign the
property. She agreed to split half of the selling agent's
commission with Melissa Osborne, from which Ms. Brennan-Hagen
expected to make $54, 000.00. She made this clear to some
people at B & H and sent a commission statement to Mr.
first attempted closing on July 31st, 2011, Ms. Brennan-Hagen
testified that she sensed a problem after Mr. Osborne handed
her the commission checks. Ms. Brennan-Hagen realized that
both checks were made to Douglas Elliman, and none to
Saunders. She attempted to contact the involved parties, but
was ultimately unsuccessful, leading to calling off the
closing. At the second closing, Mr. Osborne did not accept
Ms. Brennan-Hagen's commission statement and ultimately
completing the closing without any payment to Saunders.
cross-examination, Mr. Valet initially inquired about the
qualifications of a real estate sales person and
responsibilities of representing a seller. Ms. Brennan-Hagen
testified that it revolved around acting in the seller's
interest and providing and gathering any information needed
to make a transaction on the seller's behalf. Ms.
Brennan-Hagen testified that she never negotiated how the
property would be paid for or the quality of the title, and
she did not negotiate with Mr. Shedrick. Instead, she only
gave him information pertaining to property values. She
testified that she was not involved in the negotiation for
the final price. Mr. Bruyn and Mr. Osborne negotiated those
respect to splitting the commission, Ms. Brennan-Hagen
expressed frustration with having to split it with Melissa
Osborne, who was also a selling agent. Ms. Brennan-Hagen only
decided to do so because Mr. Shedrick requested that she
split the commission with Ms. Osborne. Ms. Brennan-Hagen then
testified that Douglas Elliman was supposed to split the
commission with the "co-broke" agency, meaning the
payment structure was between the two agencies. She concluded
her testimony by noting that she would be entitled to the
commission upon the transfer of Title.
Defendant called Jeanine Edington on its behalf. Ms. Edington
is involved in real estate sales at Douglas Elliman and
entered into a listing agreement with the owners of the
property. Ms. Edington recalled that Mr. Shedrick contacted
her to express interest in the property. Ms. Edington also
testified that Ms. Brennan-Hagen contacted her to obtain
information about the property the same day Mr. Shedrick
contacted her expressing his interest. Ms. Edington provided
Ms. Brennan-Hagen with the listing, surveys, and restrictions
but did not engage in negotiations with her and was surprised
by Saunders' claim for a commission. Finally, Ms.
Edington noted that she knew Melissa Osborne from her
employment at Douglas Elliman and that she did not object to
Ms. Osborne's submission of an invoice for commission
because Ms. Osborne registered Mr. Shedrick as a client at
cross examination, Ms. Edington testified that the first time
she heard Saunders' claim for a commission was
immediately before the closing. Ms. Edington believed
Plaintiff did not share in the commission because of a
dispute, but noted that B & H received its remuneration
while the rest was held up.
the conclusion of Ms. Edington's testimony, Mr. Conforti
called Ms. Brennan-Hagen as a rebuttal witness. She testified
that she provided Mr. Shedrick with Ms. Edington's
contact information after speaking with Edington. In that
conversation, Ms. Brennan-Hagen testified that she indicated
Mr. Shedrick was interested in the property and wanted to
contact Ms. Edington directly. Ms. Brennan-Hagen thought she
understood that she was expecting compensation by asking Ms.
Edington for the Orex information and that Orex works on a
"co-broke". She thought it was something that did
not need to be discussed. This concluded Ms.
non-jury trial, it falls to the Court to determine the
veracity of the proof. We begin with a review of the
testimony. This is a sobering responsibility in that,
traditionally, determination of the credibility of witnesses
is viewed as the province of the Trial Judge (Morales v.
Inzerra, 98 A.D.3d 484, 485, 949 N.Y.S.2d 433, 436 [2nd
Dept. 2012]; Tornheim v. Blue & White Food Prod.
Corp., 88 A.D.3d 867, 868, 931 N.Y.S.2d 340, 341[2nd
Court's powers of discernment are presumed but must be
exercised with caution, not conceit. As the Bard observed:
"There's no art to find the mind's construction
in the face."  Justice Ralph Gazzillo best summed up
this aspect of the non-jury trial when he stated:
"As to the quality of any given witness, the flavor of
the testimony, its quirks, the witness' bearing,
mannerisms, tone and overall deportment cannot be fully
captured by the cold record; the fact-finder, of course,
enjoys a unique perspective for all of this, and the ability
to absorb any such subtleties and nuances" (J &
K Parris Const., Inc. v. Roe Ave., Assoc., Ltd., 47
Misc.3d 1227 [A], 18 N.Y.S.3d 579');">18 N.Y.S.3d 579 [NY Sup. Ct. 2015]).
reviewing all the testimony and observing the demeanor of the
witnesses, the Court finds Mr. Daniel Shedrick and Ms.
Hagen-Brennan to be more credible than ...