In a March 24, 2011 decision by Justice Fried, the Court decided defendant’s motion to dismiss plaintiff’s complaint seeking recovery of real estate brokerage commission. Specifically, defendant claimed that the breach of contract claim should be dismissed pursuant to CPLR 3211(a)(1) based on documentary evidence, and that the unjust enrichment and quantum meruit claims were duplicative of the contract claim.

Plaintiff and defendant Extell entered into a brokerage commission agreement in which Extell agreed to pay plaintiff either 3% of the purchase price or $371,800 in connection with Extell’s purchase of air rights to certain property on West 25th Street in New York City. The initial proposed transaction never closed. Years later, the air rights were ultimately sold to a third party, the Sabet Group, who later in turn sold to Extell in 2010. Plaintiff claims it is now owed a commission on the sale, which Extell disputes.

Construing the complaint liberally, the Court concluded that plaintiff sufficiently plead a breach of contract claim. The Court reasoned that the commission agreement did not identify who the seller of the property had to be in order to entitle plaintiff to a commission. The Court rejected Extell’s attempt to establish plaintiff was not entitled to a commission based upon certain documents from the initial proposed transaction that did not close. The Court did, however, dismiss both the unjust enrichment and quantum meruit claims on the ground that there was an enforceable contract between the parties, which supersedes such claims.

Eastern Consol. Props., Inc. v.Extell Dev. Co., Sup Ct, New York County, March 24, 2011, Fried, J, Index No. 601050/2010.