YSM Realty, Inc. v. Marvin Grossbard , 532 F. App'x 313 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3056
_____________
YSM REALTY, INC.; DAVID SCOP,
Appellant
v.
MARVIN GROSSBARD; PRESIDENT CONTAINER, INC.;
SP REALTY ASSOCIATES II, LLC.
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-10-cv-05987
District Judge: The Honorable Jose L. Linares
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 19, 2013
Before: RENDELL, SMITH, and ROTH, Circuit Judges
(Filed: August 7, 2013)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
In late May of 2007, David Scop, a licensed real estate broker in New York
and owner of YSM Realty, agreed to assist President Container, Inc. (PCI), in
finding a new site for its manufacturing operations. PCI’s president, Marvin
1
Grossbard, allegedly told Scop at the time that he would pay Scop a commission if
the property’s seller would be unwilling to pay it. Scop later dealt with Heshy
Zweig, who Scop believed to be a licensed New York real estate broker. Scop
learned from Zweig of a possible property in Wallkill, New York, for PCI and
agreed to split any commission he received with Zweig. Eventually PCI’s wholly
owned subsidiary SP Realty II, LLC purchased the Wallkill property initially
identified by Zweig. When the seller would not cover Scop’s commission, PCI
refused to pay it. Scop sued PCI, Grossbard, and SP Realty to recover his
commission.
Discovery revealed that Zweig was not a licensed real estate broker. PCI,
Grossbard, and SP Realty moved for summary judgment on this basis in light of
New York’s Real Property Law §§ 442 and 442-d, which preclude a licensed real
estate broker from recovering a commission if it is to be shared with an unlicensed
broker. Good Life Realty, Inc. v. Massey Knakal Realty of Manhattan, LLC, 940
N.Y.S.2d 64, 65 (N.Y. App. Div. 2012) (citing City Ctr. Real Estate, Inc. v.
Berger, 833 N.Y.S.2d 75, 76 (N.Y. App. Div. 2007); Siegel v. Henry Fippinger,
Inc., 34 N.Y.S.2d 894 (N.Y. App. Div. 1942)) (concluding that plaintiff broker
“was barred by Real Property Law § 442-d from recovering a cobrokerage
commission based upon services rendered by [another, who] was not a duly
licensed real estate broker or salesperson”). In a thorough opinion, the District
2
Court agreed with PCI, Grossbard, and SP Realty and granted summary judgment
in their favor. This timely appeal followed.1
For substantially the reasons set forth by the District Court, we conclude that
the Court appropriately granted summary judgment in favor of PCI, Grossbard, and
SP Realty. Scop candidly acknowledges that he had agreed to pay Zweig half of
his commission. It is undisputed that Zweig was not licensed at the time of his
involvement in this matter. As a consequence, New York law precludes Scop from
recovering his commission.
We will affirm the judgment of the District Court.
1
The District Court exercised diversity jurisdiction pursuant to 28 U.S.C. § 1332.
We exercise final order jurisdiction under 28 U.S.C. § 1291. We review a district
court’s grant of summary judgment de novo. Lawrence v. City of Phila., 527 F.3d
299, 310 (3d Cir. 2008).
3