The opinion
Poore v Brown Harris Stevens Residential Sales, LLC
2025 NY Slip Op 30161(U)
January 15, 2025
Supreme Court, New York County
Docket Number: Index No. 652218/2023
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 652218/2023
NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/15/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
---------------------------------------------------------------------------------X INDEX NO. 652218/2023
CHRIS POORE
MOTION DATE 09/13/2024
Plaintiff,
MOTION SEQ. NO. 005
-v-
BROWN HARRIS STEVENS RESIDENTIAL SALES, LLC, DECISION + ORDER ON
MOTION
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 79, 80, 82, 84, 88
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
Upon the foregoing documents, plaintiff’s motion is denied.
Background
Factual History
Chris Poore (“Plaintiff”) is a licensed real estate broker who was working for Sotheby’s
when he was approached by the CEO of Brown Harris Stevens Residential Sales, LLC
(“Defendant”) with a job offer. In August of 2020 Plaintiff was given an offer letter (the “Offer
Letter”) that matched Plaintiff’s current compensation and benefits and also guaranteed referrals,
including for new developments. The day after the parties signed the Offer Letter, they also
signed an Independent Agent Agreement (the “IAA”). The IAA purported to incorporate the
Offer Letter, and in a relevant provision stated that “[Plaintiff] confirms that [Plaintiff] has been
given the opportunity to review [Defendant’s] Policies in detail and will keep abreast of all
updates provided by [Defendant], which shall be binding on [Plaintiff].”
Roughly two years after joining, Plaintiff left his employment relationship with
Defendant citing the lack of guaranteed referrals. A sale that Plaintiff was involved with ended
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up closing after Plaintiff’s departure, and in response Defendant reduced Plaintiff’s commission
according to terms found in their Policy Manual. In response, Plaintiff commenced this
underlying suit in May of 2023, with two claims against Defendant: one for payment of sales
commissions and attorneys’ fees pursuant to New York Labor Law, and one for breach of
contract for failing to honor the terms of the Offer Letter and IAA. Defendant filed a verified
answer with counterclaims in July of 2023.
Procedural History
In September of 2023, Plaintiff made a motion for summary judgment on his two claims.
This motion was denied as to the first claim but granted as to the second. Plaintiff then moved
for reargument, which was granted. On reargument, the Court granted summary judgment for
Plaintiff on the first cause of action, holding that “the Court does not see how the defendant will
be able to establish beyond a reasonable doubt that policy manual was incorporated by reference
into the original agreement that was signed prior to the plaintiff even knowing about the
existence of the policy manual.” Plaintiff now brings the present motion, seeking summary
judgment on the counterclaims and to sever their first cause of action from the second, allowing
for a judgment in sum certain on the first while discovery proceeds on the second.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion “shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
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trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016).
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id.
Discussion
Plaintiff argues that the Court’s prior holding when granting summary judgment on the
first cause of action necessarily implies that the Policy Manual is not binding at any time on
Plaintiff, and therefore there is no basis for the counterclaims. Plaintiff faces two problems with
this motion. The first is that Plaintiff could have easily moved for summary judgment in their
favor on the counterclaims at the same time that they moved for summary judgment on their own
claims. The line of reasoning is similar, in that both motions rely on Plaintiff’s argument that the
Policy Manual is not binding on him and that the terms of his Offer Letter and IAA control. In
New York, “it is axiomatic that successive summary judgment motions are disfavored.” Priester
v. Phanor, 228 A.D.3d 593, 594 (1st Dept. 2024).
The second problem that Plaintiff faces is that there are issues of fact remaining on the
counterclaims. While this Court held that, at the time of signing the IAA, the Policy Manual
could not have been incorporated by reference and binding on Plaintiff, given the fact that he did
not have the opportunity to review it before signing, that does not mean that the Policy Manual
could never have been binding on Plaintiff. The IAA states that Plaintiff would “keep abreast of
all updates provided by [Defendant], which shall be binding on [Plaintiff].” It is not settled when
Plaintiff became aware of the changes to the Policy Manual during his employment, or when the
policies that underpin the counterclaims would have become binding on Plaintiff. For the reasons
given above, Plaintiff here has failed to meet their burden on a summary judgment motion.
Because of the outstanding counterclaims, the Court does not find that judicial economy would
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favor severing the first cause of action and awarding a judgment on that claim. Accordingly, it is
hereby
ADJUDGED that plaintiff’s motion for summary judgment and to sever is denied.
1/15/2025
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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