NY Real Prop L § 294-B (2021)
2021 New York Laws RPP - Real Property Article 9 - Recording Instruments Affecting Real Property 294-B - Recording Brokers Affidavit of Entitlement to Commission for Completed Brokerage Services.

§  294-b. Recording brokers affidavit of entitlement to commission for completed brokerage services. 1. A duly licensed real estate broker  who asserts  that  he  or  she has produced a person who was ready, able and willing to purchase or lease all  or  any  part  of  a  parcel  of  real property  or  any  interest  in  a  cooperative  apartment pursuant to a written or oral contract of brokerage employment between  the  owner  of said  parcel of real property or interest in a cooperative apartment and such broker, and who asserts that such person or a party acting  on  his or  her  behalf  subsequently  contracted  to  purchase or lease, or did purchase or lease such  real  property  or  any  part  thereof,  or  any interest  in  a  cooperative apartment and who asserts that he or she is entitled to a commission pursuant to such written or oral contract,  may file  an  affidavit of entitlement to commission for completed brokerage services in the office of the recording officer of any county  in  which any of the real property is situated.   2.  Such  affidavit  shall include: (i) the name and license number of the broker claiming the commission; (ii)  the  name  of  the  seller  or person  responsible  for  commission;  (iii)  the  name  of  the  person authorizing the sale on behalf of the seller, if any, and  the  date  of such  authorization; (iv) a copy of the written agreement, if any; (v) a description  of  the  real  property  or  interest  in  the  cooperative apartment  involved;  (vi)  the  amount  of  commission claimed; (vii) a description of the brokerage services performed; and  (viii)  the  dates thereof.  Recording  such affidavit shall not invalidate any transfer of real property or lease thereof. Such affidavit shall not  be  deemed  to create a lien and shall be discharged one year after filing.   3.  Upon  receipt  by  the  county  clerk  of  a broker's affidavit of entitlement to commission  for  completed  brokerage  services  for  the purpose of recording, entering and indexing, the clerk shall record such affidavit  in  the  lien  docket and shall note thereon that such notice does not constitute a lien nor  shall  it  invalidate  any  transfer  or lease.  In  payment for said services the county clerk shall be entitled to receive a fee equivalent to that received for recording  a  deed  and pages thereof.   4.  (a)  Within  five  business  days  after  filing  the affidavit of entitlement, the broker shall serve a copy of such affidavit, along with the fee required pursuant to paragraph (c) of subdivision five  of  this section, upon the seller by registered or certified mail, return receipt requested  or  by  personal  delivery,  to  the address set forth in the written contract of brokerage employment. If the delivery of the deed or delivery of the stock certificate and/or proprietary lease will occur in five business  days  or  less  from  the  filing  of  the  affidavit  of entitlement,  then  the  broker  shall  personally deliver a copy of the affidavit of entitlement to the seller. Where there  is  more  than  one seller,  service  upon one seller shall be deemed sufficient to meet the requirements of this  paragraph.  Failure  to  serve  the  affidavit  of entitlement  upon  the  seller  pursuant to this paragraph shall cause a forfeiture of  the  broker's  rights  under  subdivision  five  of  this section. In the event the seller fails to deposit any monies pursuant to paragraph  (a)  of  subdivision  five  of this section, the seller shall immediately return the fee provided by the broker.  (b) If the seller is represented by an attorney and has  provided  the attorney's  contact information to the broker prior to the filing of the affidavit of entitlement,  the  broker  shall  provide  a  copy  of  the affidavit  of  entitlement to the seller's attorney via mail, facsimile, e-mail, personal delivery or any other agreed upon  method  within  five business  days of the filing of the affidavit of entitlement. Failure to deliver a copy of the affidavit of entitlement to the seller's  attorney  pursuant  to  this paragraph shall not cause a forfeiture of the brokers rights under subdivision five of this section.   5.  (a)  Whenever  an affidavit of entitlement by a duly licensed real estate broker, which includes a written contract of brokerage employment containing the notices set forth in paragraph (j) of  this  subdivision, has  been  recorded  pursuant to this section prior to the delivery of a deed in connection with a sale of all or any part of a  parcel  of  real property,  or delivery of the stock certificate and/or proprietary lease in connection with the sale of a cooperative apartment, and  the  broker does  not  receive  the  compensation called for under the terms of such written contract at or prior to the delivery of the deed or delivery  of the  stock  certificate  and/or proprietary lease, the lesser of the net proceeds of the sale  or  the  amount  of  the  unpaid  portion  of  the compensation  agreed  to  in such written contract shall be deposited by the seller, at the time of delivery of the deed or delivery of the stock certificate and/or proprietary lease,  with  the  recording  officer  in whose office such affidavit of entitlement had been recorded.  (b)  In  the  event  multiple  affidavits  of entitlement are filed in connection with a sale of real property or any interest in a cooperative apartment pursuant to this section, the seller  shall  be  obligated  to deposit an amount equal to the lesser of the net proceeds of the sale or the  greatest amount of the unpaid portion of the compensation agreed to in the  written  contracts  of  brokerage  employment  attached  to  the multiple affidavits of entitlement.  (c)  Upon  deposit  of  any  monies  pursuant to paragraph (a) of this subdivision, the recording officers shall be entitled to receive  a  fee of  twenty-five  dollars, which shall be paid by the real estate broker. The real estate broker shall make the twenty-five dollar fee payable  to the  recording  officer  in such form of payment that is accepted by the recording officer.  (d) The monies deposited with the recording officer pursuant  to  this subdivision  shall  be  held  pursuant  to  subdivision  (b)  of section twenty-six hundred one of the civil practice law  and  rules  until  the rights  of  the seller and broker to such monies have been determined by order  of  a  court  of  competent  jurisdiction  as  provided  in  this paragraph.  All  deposits of money pursuant to this subdivision shall be deemed paid into court and shall be subject to the provisions of article twenty-six of the civil practice law  and  rules,  except  as  otherwise provided in this subdivision. An order for the payment of such monies to the broker or seller may be made in any action or proceeding determining or  declaring  the  entitlement,  if  any, of the broker to compensation under the written contract of brokerage  employment  recorded  with  the affidavit  of  entitlement  or  as otherwise provided in rule twenty-six hundred six of the civil practice law and rules or, whether  or  not  an action or proceeding has been commenced, may be based upon a stipulation signed  by  the  seller  and  the  broker.  Any application for an order pursuant to this paragraph made by the broker or the seller shall be  on motion  with notice to the other party, except that an application based upon a stipulation signed by the seller and the broker may be  submitted without notice if the stipulation so provides.  (e)  If  neither  the  broker  nor  the  seller commences an action or proceeding described in paragraph (d) of this subdivision  within  sixty days from the day of deposit of monies pursuant to paragraph (a) of this subdivision,  which  time  limit shall not be extended, the seller, upon petition, shall be entitled to an order directing  the  payment  to  the seller  of  such  monies  out  of  court, including any accrued interest thereon, less any fees to which  any  public  officer  may  be  entitled  pursuant  to law, but such an order shall not be deemed to determine the broker's claim for a commission.  (f)  Notwithstanding  any other provision of law to the contrary, upon the seller  making  the  deposit  required  by  paragraph  (a)  of  this subdivision,  any  action  or  proceeding  based  upon  the  contractual obligation to pay a  commission  under  the  contract  of  brokerage  of employment  shall  be  commenced  by the broker within six months of the deposit of the monies pursuant to paragraph (a) of this subdivision.  (g) The obligation to deposit monies pursuant to this  subdivision  or the  seller's  failure  to  do  so  shall not constitute or be deemed to create a lien or encumbrance against any real property. Any violation of this subdivision shall not invalidate any transfer of real property.  (h) In any action or proceeding commenced pursuant to this subdivision when the seller has not made the deposit required by  this  subdivision, and  it  is  determined  by  a  court  that  the  broker  is entitled to compensation pursuant to the written contract of  brokerage  employment, the  broker  shall  be awarded costs, including the fee paid pursuant to paragraph (c) of this subdivision, and reasonable attorneys' fees.  (i) Nothing in this subdivision  shall  be  construed  to  prohibit  a broker  from  waiving  a seller's obligation to deposit money under this subdivision, provided such waiver is set forth in an  instrument  signed by or on behalf of the broker. Such instrument may be a written contract of brokerage employment or any other instrument.  (j)  The  provisions  of  this  subdivision  shall only apply when the written  contract  of  brokerage  employment  contains   the   following statement to the seller in clear and conspicuous bold face type:   "At  the  time of closing, you may be required to deposit the broker's commission with the county clerk in the event that you do  not  pay  the broker  his  or  her  commission as set forth herein. Your obligation to deposit the broker's commission with the county clerk may be  waived  by the broker."  (k)  The  provisions  of  this  subdivision  shall  only apply to real property improved by a one to four family  dwelling  and  to  individual condominium units and individual cooperative apartments where the one to four  family dwelling, condominium unit or cooperative apartment is used or occupied, or intended to be used or occupied, wholly  or  partly,  as the home or residence of one or more persons.