Seider v. Fagin

Joseph F. Gagliardi, J. In this action to prevent the defendant Ralph Fagin from continuing to manage a parcel of real property improved with a 40-family multiple dwelling and for an accounting, plaintiffs request a temporary injunction restraining him from managing this property. Defendant Ralph Fagin is the husband of defendant Pearl Fagin and the son-in-law of defendant Becky Boris, each of whom owns an undivided one-quarter interest in this property. Plaintiff Mildred Steinhubl is the daughter-in-law of Becky Boris. The remaining plaintiffs are Mildred Steinhubl’s daughter Judy Boris, and her parents Samuel and Hannah Seider. Plaintiffs own the remaining one-half interest in this property in varying degrees as tenants in common. Plaintiffs urge that this defendant cannot manage the property since he is not a licensed real estate broker. Section 440 of the Real Property Law states in part as follows: ‘ ‘ Whenever used in this article ‘ real estate broker ’ means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, at auction or otherwise, exchanges, buys or rents, or offers or attempts to negotiate a sale, at auction or otherwise, exchange, purchase or rental of an estate or interest in 426 real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts to negotiate, a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate.” Nevertheless, it would seem that management of family property exclusively for a reasonable compensation was not intended to fall within the statutory definition necessitating a license (1943 Atty. Glen. 366; 1929 Atty. Glen. 269). Temporary relief on motion cannot be granted when the right to the final relief sought is not conclusively established (Malkan v. General Transistor Corp., 27 Misc 2d 677). On the papers before the court, it cannot be said that the ultimate relief here is not open to doubt. The motion therefore is denied.