Modified Brokerage Agreement Enforced as Settlement Agreement

In an interesting recent case, the First Department affirmed the viability of a broker’s claim for a commission despite the fact that there were questions as to the broker’s actual role in procuring a buyer.

After Waterbridge Capital, LLC sold a property, it refused to pay its broker, Eastern Consolidated Properties, Inc., claiming that another broker was also seeking a commission payment. Waterbridge asked Eastern to accept a lower amount, which Eastern agreed to do. In the end, Waterbridge refused to pay anything and Eastern sued. Waterbridge argued that Eastern was not entitled to any commission because it was not the broker that sold the property. In viewing the parties’ agreement as a settlement agreement and not a brokerage agreement, the court rejected Waterbridge’s claim finding that once the parties settled, Eastern was entitled to payment regardless of its work as a broker. Specifically, the court held that “[c]ontrary to defendants’ arguments, plaintiff is not required to plead or prove that it was a ‘procuring cause’ of the purchase in order to recover on this agreement, which was in the nature of a settlement agreement. Plaintiff’s relinquishment of its claim for a full commission provides adequate consideration for the agreement, even if its claim was doubtful or would ultimately prove to be unenforceable” (citations omitted).