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Current Developments in the Commercial Divisions of the
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Posted: January 31, 2016

Assignee of Right to Collect Commission Cannot Collect Because the Assignor Not Licensed Real Estate Broker

On January 27, 2016, the Second Department issued a decision in Burton v. Lucido, 2016 NY Slip Op. 00463, holding that the plaintiff, who had been assigned the right to collect a commission on the sale of real estate, was not entitled to collect the commission, explaining:

In order to recover a real estate brokerage commission, a broker must establish that he or she (1) is duly licensed, (2) had a contract, express or implied, with the party to be charged with paying the commission, and (3) was the procuring cause of the sale. Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that Colestar, which assigned to the plaintiff its alleged interest in the commission at issue, was not a licensed real estate broker entitled to recover a commission during the relevant time period. In opposition to this prima facie showing, the plaintiff failed to raise a triable issue of fact. Although the president and sole shareholder of Colestar, Alexander J. Skorupski, Jr., was a licensed real estate broker during the relevant time period, Colestar was barred from receiving a commission for brokerage services based on Skorupski’s license. Skorupski testified at his deposition that while his brokerage license cards included Colestar’s name, the license was held by him, not the company, and the plaintiff presented no evidence to the contrary.

(Internal quotations and citations omitted) (emphasis added).

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