Nativ Winiarsky, a partner at Kucker Marino Winiarsky & Bittens, LLP, saved a client hundreds of thousands of dollars and successfully demonstrated that a brokerage firm is not always entitled to a claimed sales commission. In Miron Properties, LLC v Eberli the Court ruled that the Commission Agreement did not clearly provide an exclusive brokerage and that since the broker did not significantly contribute meaningfully to the transaction and that the defendant was not as the broker claimed an agent of the daughter’s company, the actual purchaser.
This case commenced after a broker from Miron Properties, LLC met with Bruno Eberli to view apartments for his daughter. The broker showed Eberli two rental apartments. Eberli, unimpressed with both apartments, ceased communicating with the broker. Months later, the broker followed up with Eberli and discovered that an apartment had been purchased by Eberli’s daughter’s company. The brokerage firm alleged that the broker was entitled to a commission despite not having shown the subject apartment to Eberli or his daughter and despite the fact that it was a limited liability company owned by Eberli’s daughter that ultimately purchased the unit. The brokerage firm argued that the subject apartment building was technically connected to the building of one of the apartments the broker had shown Eberli. The firm also asserted claims against the daughter’s company despite having never showed or discussed the subject apartment with a company representative.
Nativ Winiarsky successfully established that the Commission Agreement was not an exclusive agreement and that the broker did not significantly contribute to the purchase as he was unaware the apartment was even for sale. Most importantly, because Eberli had not signed the Commission Agreement as an agent of his daughter’s company he was unrelated to the transaction and not involved in directing any terms with the seller’s representatives.
On appeal, the Appellate Division affirmed the decision of the Lower Court 4-0 and the Court of Appeals denied leave to hear a further appeal.