- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Collé v. Saunders
- Docket
- 2024-09215
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03288
- Citation
- 2026 NY Slip Op 03288 (N.Y. App. Div. 2d Dep’t 2026)
Background
Jeffrey Collé commenced an action against Andrew Saunders and other defendants to recover damages for breach of contract. Collé alleged that he was not paid for services he rendered pursuant to an oral agreement with the defendants in connection with the sale of a certain parcel of real property. The defendants moved for summary judgment dismissing the complaint, arguing that Real Property Law § 442-d barred the plaintiff from maintaining the action because he lacked a real estate broker’s license at the time of the transaction.
In opposition, Collé argued that Real Property Law § 442-d was not applicable under the circumstances, contending that his services were “consulting” in nature rather than real estate brokerage. He submitted his own affirmation and affirmations of two other individuals in support of his position. The defendants separately moved to strike those affirmations as prohibited by an order of preclusion dated November 28, 2023, which had barred the plaintiff from offering any further evidence in support of his claims on dispositive motions or at trial.
The Supreme Court, Suffolk County granted both branches of the defendants’ motions — dismissing the complaint on summary judgment and striking the plaintiff’s opposition affirmations. Collé appealed.
Holding
The Appellate Division, Second Department unanimously affirmed the Supreme Court’s order, with costs. The court applied the well-established rule that Real Property Law § 442-d “bars unlicensed persons and corporate entities from recovering fees or commissions for the performance of services facilitating, inter alia, the sale of real property,” citing Ling’s Props., LLC v. Bode, 94 AD3d 951, and Fields v. Pinkney, 242 AD3d 948.
The court applied the “dominant feature” test, under which a person without a real estate broker’s license is barred from collecting a fee when “the dominant feature of the transaction at issue is the transfer of real property.” The defendants demonstrated, prima facie, that the sale of the property was the dominant feature of the transaction and that Collé was attempting to collect a fee for services facilitating that sale. In opposition, Collé failed to raise a triable issue of fact.
The court specifically rejected Collé’s argument that characterizing his services as “consulting” should take the transaction outside the scope of the statute. The record showed that the sale of the property was not merely incidental to the agreement and that the services were rendered solely for the purpose of facilitating the sale. The court also upheld the striking of the plaintiff’s opposition affirmations under the preclusion order.
Takeaways
This decision reinforces the strict enforcement of New York’s real estate licensing requirements under Real Property Law § 442-d. The statute operates as an absolute bar to recovery for unlicensed individuals who perform brokerage services, regardless of how those services are characterized. Labeling services as “consulting” rather than “brokerage” will not avoid the statute’s prohibition when the substance of the services involves facilitating the sale of real property.
The “dominant feature” test is the key analytical framework. Courts look beyond the labels used by the parties and examine whether the sale of real property was the primary purpose of the arrangement. If so, the unlicensed party cannot recover, even if some aspects of the services might not independently require a license.
The decision also demonstrates the serious consequences of failing to comply with discovery orders. The preclusion order stripped Collé of the ability to present evidence opposing the summary judgment motion, effectively dooming his case. Practitioners must take preclusion orders seriously, as they can be outcome-determinative on dispositive motions.
Why It Matters
For anyone involved in real estate transactions in New York, this case is a stark reminder of the licensing requirements that govern compensation for facilitating property sales. Individuals who assist with real estate transactions without a license — whether they style themselves as consultants, advisors, or intermediaries — face the prospect of being denied any compensation for their work. The statute’s protection of consumers and the integrity of the real estate brokerage profession takes precedence over private agreements between the parties.
The case is also instructive for litigation practitioners regarding the interplay between preclusion sanctions and summary judgment practice. A party subject to a preclusion order faces an uphill battle on a summary judgment motion, as the inability to submit evidence in opposition may be fatal to the claim. This underscores the importance of complying with discovery obligations throughout litigation to preserve the ability to defend against dispositive motions.