2023 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.