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Dolan Commercial Real Estate Services, Inc v. Moishe Mana

October 28, 2011

DOLAN COMMERCIAL REAL ESTATE SERVICES, INC., PLAINTIFF-APPELLANT,
v.
MOISHE MANA, AVISHAY LEVANOVSKY, M MANAGEMENT, INC. AND PROLOGIS, INC., DEFENDANTS, AND GRM INFORMATION MANAGEMENT SERVICES, INC. F/K/A GUARANTEE RECORDS MANAGEMENT, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2864-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 3, 2011

Before Judges Parrillo, Alvarez and Skillman.

Plaintiff is a real estate brokerage firm. Defendant Guarantee Records Management (GRM) is engaged in the business of storing business records.

GRM frequently seeks real estate for use in conducting this business and has utilized plaintiff's services for this purpose on multiple occasions. When those efforts have resulted in a lease between GRM and another party, GRM has paid plaintiff a commission.

In the beginning of November 2004, plaintiff received a request from GRM's representatives to find a "high cube building" near another site GRM had leased in Jersey City. Plaintiff presented GRM with a proposed written exclusive brokerage agreement for the lease of such a building, but GRM's representatives refused to sign the agreement.

Thereafter, plaintiff began looking for properties suitable for GRM's needs and eventually sent a list of available properties to Avishay Levanovsky, who was GRM's chief operating officer at that time. After receiving the list, Levanovsky asked plaintiff to schedule a visit to the Greenville Yards building in Jersey City, which was one of the properties on the list.

On November 4, 2004, plaintiff's principal, William E. Dolan, took Levanovsky to tour the Greenville Yards property. During this visit, Dolan introduced Levanovsky to the property owner's exclusive agent at the time, Mr. Thomas Monahan of Colliers & Houston. According to Levanovsky, the building was not suitable for GRM's needs because GRM was seeking a building to buy, not lease, and the Greenville Yards was not for sale at the time. After the November 4, 2004 tour of Greenville Yards, Dolan sent Levanovsky a site plan, along with brochures, building plans, aerial photographs, tax information and rental rates for the Greenville Yards site.

During the next year and a half, plaintiff provided brokerage service to GRM in connection with an unrelated redevelopment project. Some of those services were performed pursuant to a written exclusive brokerage agreement. However, none of those services resulted in GRM buying or leasing any property. Consequently, plaintiff did not earn any brokerage commission based on the performance of those services.

Dolan claims that while performing this work for GRM, he kept reminding Levanovsky that the Greenville Yards site was still available. However, Levanovsky did not further pursue the leasing of the Greenville Yards site.

In June 2006, GRM decided, due to its increased need for space, to lease another property for its records storage business. Levanovsky testified at his deposition that Yossi Harel, GRM's vice-president and general manager for real estate facilities, phoned a number of brokers, including Cushman and Wakefield, to find a property for GRM close to Manhattan with 200,000 to 250,000 square feet of space. Harel only became aware of the Greenville Yards property through Cushman and Wakefield. On behalf of GRM, Jason Goldman of Cushman and Wakefield contacted Marc Petrella, who was the representative of the owner, Prologis, and scheduled an appointment to view the Greenville Yards property. Goldman testified that he took Harel and on one occasion Levanovsky on site visits to the Greenville Yards property. When he took Levanovsky there, Levanovsky said it looked familiar.

From June 2006 to August 17, 2006, Goldman negotiated with Prologis for the lease of the Greenville Yards on behalf of GMR. Through emails and letters, offers and counter offers were exchanged between Goldman, on behalf of GRM, and Petrella, on behalf of Prologis. Multiple drafts of the lease were prepared and sent back and forth between Goldman, GRM, and Prologis.

Dolan was not involved in these lease negotiations. The final lease agreement was signed on August 17, 2006. In the lease agreement, Goldman of Cushman and Wakefield was named the broker. Cushman and Wakefield was paid a five ...


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