No. 89
Elizabeth M.R. Dubbs et al.,
Appellants,
v.
Stribling & Associates, et al.,
Respondents.
_________________________________________________________________
2001 NY Int. 72
June 12, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Edward J. Guardaro, Jr., for appellants.
Steven M. Nachman, for respondents. GRAFFEO, J.: At issue is whether a
real estate broker breached a fiduciary duty owed a principal. For the
reasons that follow, we conclude that the Appellate Division properly
dismissed plaintiffs' breach of fiduciary duty claim.
Because the complaint was dismissed on a motion for summary judgment,
the facts are viewed in the light most favorable to the plaintiffs.
Plaintiffs placed their Manhattan cooperative apartment on the market
in 1994 as an "open listing." Under this arrangement, any real estate
broker who located a purchaser for the property would be entitled to a
commission from plaintiffs. Defendant Stribling & Associates, a real
estate brokerage firm, through its agents, defendant Avery
Chappel-Smith (a licensed salesperson) and defendant Judith Durham (a
licensed broker), showed plaintiffs' apartment to several prospective
purchasers. Plaintiffs confided to Chappel-Smith and Durham that they
would have preferred to retain their apartment and purchase the
adjacent apartment, combining the two into one residence. Because the
owner of the adjacent apartment was unwilling to sell, plaintiffs had
decided to sell their apartment and purchase a larger property.
After showing plaintiffs' apartment on several occasions to potential
purchasers, Chappel-Smith and her husband decided to submit an offer
to purchase the apartment themselves. Durham presented the proposal to
plaintiffs, indicating that the brokerage commission to which
defendants would have been entitled had they located a third-party
purchaser would be waived because Chappel-Smith was an agent of the
brokerage firm. Durham cautioned plaintiffs to contact their neighbor
one more time to make certain purchase of the adjacent apartment was
not a viable option before they accepted Chappel-Smith's offer.
Plaintiffs maintained that they advised their neighbor to "name her
price" but she again declined to sell.
Accordingly, in December 1994 plaintiffs entered into a written
SNIPPETS:
we conclude that the Appellate Division properly dismissed plaintiffs' breach of fiduciary
Because the complaint was dismissed on a motion for summary judgment, the facts are viewed in
any real estate broker who located a purchaser for the property would be entitled to a
Defendant Stribling & Associates, a real estate brokerage firm, through its agents, defendant
Plaintiffs confided to Chappel-Smith and Durham that they would have preferred to retain
Because the owner of the adjacent apartment was unwilling to sell, plaintiffs had decided to
After showing plaintiffs' apartment on several occasions to potential purchasers,
Durham presented the proposal to plaintiffs, indicating that the brokerage commission to
Durham cautioned plaintiffs to contact their neighbor one more time to make certain purchase
in December 1994 plaintiffs entered into a written contract with Chappel-Smith and her
Paragraph 12.2 of the contract, a provision referencing the seller's obligation to pay the
Indeed, because the apartment was an "open listing," plaintiffs had not entered into a
We now affirm.
The broker/principal relationship and accompanying fiduciary duty can be severed by agreement
Where a broker's interests or loyalties are divided due to a personal stake in the
Applying these principles to this case, we conclude that defendants were entitled to summary
She clearly fulfilled this obligation for there is no evidence in the record that
To the extent plaintiffs' breach of duty claim is predicated on an allegation that
Defendants' application for summary judgment dismissing the complaint was, therefore,
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