FILED: WESTCHESTER COUNTY CLERK 05/19/ :15 PM INDEX NO /2015 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 05/19/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X HOULIHAN/LAWRENCE INC., Index No /2015 -against- Plaintiff, REPLY MEMORANDUM OF LAW RAYMOND LIENAU and PATRICIA LIENAU, Defendants X RAYMOND LIENAU and PATRICIA LIENAU, -against- KATHRYN FINELLI, Third-Party Plaintiffs, Third-Party Defendant X MEMORANDUM OF LAW IN REPLY TO DEFENDANTS AND IN FURTHER SUPPORT OF PLAINTIFF AND THIRD-PARTY DEFENDANT S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3212 Respectfully submitted, By: Jeffrey Briem, Esq. Attorneys for Plaintiff/Third-Party Defendant HOULIHAN LAWRENCE, INC. and KATHRYN FINELLI 670 White Plains Road Scarsdale, New York (914) of 5

2 PRELIMINARY STATEMENT After having the opportunity to lay bare their proof, the Defendants have failed to raise a triable issue of fact sufficient to defeat the Plaintiff s motion for summary judgment. The Defendants do not deny that they signed a listing agreement entitling the Plaintiff to a commission. The Defendants do not deny that the Plaintiff earned its commission under the terms of the agreement. Defendants only opposition relies upon a single point: that Ms. Finelli s modification of a form in her own file, which was never held out to be an original, constitutes a forgery and thus, a failure to disclose a dual agency. Defendants have engaged in a desperate gambit, going so far as to allege the Ms. Finelli committed a crime, but their accusations, even if accepted as true, fall short on their face. The forgery allegation, like the breach of fiduciary duty allegation, is demonstrably false as a matter of law, refuted both by the documents submitted in support of the motion and the Defendants own testimony regarding the relationship. The Defendants were aware that Ms. Finelli was the designated sales agent that was representing them on behalf of Houlihan and the Defendants agreed, in writing, in advance, that other Houlihan agents could represent potential purchasers of their property. As such, the Plaintiff s/third-party Defendant s motion should be granted in their entirety. ARGUMENT I. The Defendants Have Failed To Oppose The Plaintiffs /Third-party Plaintiff s Motion On The Counter-claims And Thus, They Should Be Deemed Abandoned. The Plaintiff s motion sought to dismiss the counterclaims asserted by the Defendants in their Answer, as well as the contribution claim asserted against Ms. Finelli in the Third-party Complaint. Notice of Motion; Affirmation of Jeffrey Briem in Support, 33; Memorandum of Law dated March 2 2 of 5

3 10, 2017, p The Defendants/Third-party Plaintiffs did not submit any opposition on those claims, much less opposition that raises a question of fact requiring a trial. Where a party fails to submit opposition on a particular claim, courts deem the allegations abandoned and summary judgment will be granted as to those claims. 430 West 23 rd Street Tenants Corp. v. 23 rd Associates, 155 A.D.2d 237 (1st Dep t 1989); Humala v. City of New York, 9 Misc. 3d 1130(A) at *2 (Sup. Ct. N.Y. Cty 2005)(Ling-Cohan, J.) As such, the counter-claims and contribution claims should be deemed abandoned and dismissed. Id. II. The Defendants Have Failed To Identify A Question of Fact Regarding Houlihan s Fiduciary Duty That Requires A Trial. Defendants opposition did not contest that Houlihan had a commission agreement, that it satisfied the terms of the agreement and that they are entitled to a commission under the terms of the agreement. Rather, Defendant claims that the agreement is unenforceable because Houlihan breached its fiduciary duty to the Defendants. Given the opportunity to lay bare their proof regarding the conduct that constituted a breach, the Defendants point to a single item: Ms. Finelli re-dated a document in her own personal file, where it remained, until she turned over her file wholesale during discovery. Respectfully, the redating of an irrelevant document is a red-herring. As a preliminary matter, as set forth in the moving papers, a second disclosure is not required when a property listing is renewed. As Ms. Finelli had already disclosed and obtained advanced consent to dual agency and such consent had never been modified or revoked, continuing disclosures were not required. Thus, the existence of this document in Ms. Finelli s personal file is neither a forgery (as the Defendants hyperbolically allege, at length, in their opposition) nor is it a breach of fiduciary duty. 3 3 of 5

4 Regarding the forgery allegations, making notations on a copy of a document stored in a personal file does not constitute forgery. The gravamen of a forgery claim is the creation and presentation of a document with the intent to deceive, either to obtain a benefit or to cause harm to another. See, e.g., N.Y. Penal Law Sec Here, the Defendants have failed to allege any facts in opposition which could lead a jury to determine that she created the document with the intent to deceive or harm. The case cited by the Defendants, People v. Mattocks, 12 N.Y.3d 326 (2009) is totally irrelevant. In Mattocks, the defendants had altered MetroCards with a zero balance by bending them in such a way that they would be accepted for entry onto subway. The Court of Appeals held that a MetroCard was a written instrument within the meaning of the penal law and that bending the MetroCard so that it could not be read, in conjunction with the good faith MTA policy in place permitting rides for unreadable cards, constituted an alteration within the meaning of the penal law. In contrast, the Defendants opposition fails to demonstrate a single instance where Ms. Finelli held the document out as an original or attempted to use it as an original. Similarly, they have not identified any benefit conferred or harm imposed by Ms. Finelli s actions. When the Defendants raised the issue of consent to dual agency in their Answer, Ms. Finelli did not present the document to refute their claim. At her deposition, Ms. Finelli never claimed that she presented a second, identical disclosure to the Defendants. Finally, the document does not constitute a breach of fiduciary duty as it did not cause the Defendants any damages, a necessary element of a breach of fiduciary duty claim. Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 808 (2d Dep t 2011)(holding that even assuming a breach of fiduciary duty by a defendant, a motion to dismiss must be granted where 4 4 of 5

5 there is no evidence of damages that are directly attributable to the breach). Here, the Defendants have failed to allege any damages suffered as a result of the form in Ms. Finelli s file. On the contrary, it is the Defendants are attempting to benefit from the existence of the form, by offering the form themselves, then refuting it. Indeed, it is the Defendants who are holding the form out to be something that it is not in an effort to find a loophole and escape a commission that they duly owe to the Plaintiff. As such, the Defendants have not raised a triable issue of fact, the Plaintiff should be granted judgment on their breach of contract claim in the amount of $46,700, exclusive of costs and interests, the attorneys fees associated with this matter, and for such other, different and further relief the Court deems just and proper under the circumstances. Respectfully submitted, /s/ Jeffrey Briem JONES MORRISON, LLP By: Jeffrey Briem, Esq. Attorneys for Plaintiff/Third-Party Defendant HOULIHAN LAWRENCE, INC. and KATHRYN FINELLI 670 White Plains Road Scarsdale, New York (914) of 5

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER...-... X HOULIHAN/LAWRENCE INC., Index No. 71209/2015 -against- Plaintiff/Petitioner, RAYMOND LIENAU and PATRICIA L. LIENAU, D efendants/respondents.