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A. AGREEMENT WITH SALES ASSOCIATES

Gottlieb v. Laub & Co. (82 N.Y.2d 457) common law contractual remuneration claim regarding commission of departed sales associate. Court of Appeals holds that claim of wilfully withholding commissions (Labor Law §198[1-a]) does not apply. There is no attorney fee remedy for a common law contractual claim. Under parties’ agreement, broker had authority to determine the personnel to conduct transaction or to reasonably reduce the split to reflect the sales associate’s actual contribution if others are involved. Sales associate is not entitled to attorney fees due to the withholding of commissions owed (Labor Law §198[1-a]), because there is no claim of a violation of Labor Law Article 6 requiring wage payment and minimum wage.

2. Fitzgibbon v. Abatelli Real Estate (214 A.D.2d 642) non-jury trial judgment in favor of salesperson against broker for commission is reversed; brokerage agreement between unlicensed salesperson and another salesperson who was operating a branch office purportedly on behalf of licensed broker pursuant to 19 NYCRR 175.20(b) is unenforceable, as a plaintiff salesperson must be licensed and may only demand compensation from a duly licensed real estate broker with whom he or she is associated (RPL §442-a). Salesperson failed to establish that she was a licensed real estate salesperson associated with a licensed broker; salesperson's only recourse for compensation from the broker upon the theory that branch office "managing" salesperson had actual or apparent authority fails where no actual authority existed and there could be no reasonable reliance upon apparent authority; 19 NYCRR 175.20 designed to protect public, not real estate salespersons.

3. Hickman v. Saunders (228 A.D.2d 559) - sales associate fails on his claims for commissions from his broker pursuant to specific terms of his independent contractor agreement with the broker; independent contractor agreement provided that sales associate would be paid his share of commissions on all transactions completed prior to his termination; commissions sought were on transactions completed after sales associate’s resignation.

4. Britvan v. Sutton & Edwards (226 A.D.2d 490) - summary judgment for broker against former salesperson affirmed; employment agreement between broker and salesperson required client’s exercise of option to renew lease to entitle salesperson to commission; no commission due where virtually all terms of lease are different and therefore not a renewal of the original lease procured by salesperson.

5. Scheer v. Kahn (221 A.D.2d 515) - departed salesperson owed commissions from broker pursuant to terms of broker’s termination policy; salesperson granted attorney’s fees pursuant to terms of mediation agreement.

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First quarter Legal Lines now available

The first quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers commission issues, a New York State Supreme Court ruling on unsigned letters not creating a contract, support animals and more. Learn more

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