The attorney for the plaintiff, Jay J. Gurfein, tells GlobeSt.com in an exclusive interview that the commission is estimated at $3 million, but an exact amount cannot be determined without having the lease in hand, something the discovery process is expected to accomplish soon.

The broker credited with sealing the deal for the owners, Insignia/ESG's C. Brad Mendelson, told GlobeSt.com for its Jan. 22, 2001 story that Insignia finished the deal in 90 days. This time frame seems to be at the heart of the issue.

Gurfein says the issue of obligation is centered on who represented the building during those 90 days--and they expect to secure evidence that Consolo was the exclusive agent for the building during the period in question.

Consolo signed a Settlement Agreement, terminating her representation of the building on May 18, 2000. Toys "R" Us spokesperson Kelly Disque tells GlobeSt.com that she and the company's vice president of real estate David Picot cannot comment on the litigation, but referred this reporter to a press release dated August 1, 2000. The press release announced: "Toys 'R' Us to Build the Center of the Toy Universe in Times Square: Flagship to Open in Fall 2001." The date of the announcement is only 75 days after Consolo signed the settlement. If the 90-day figure is accurate, Gurfein explains, this serves to demonstrate Consolo is entitled to the commission.

Insignia/ESG, whose spokesperson has no comment to make at this time, is not named as a defendant in the suit. Charles B. Moss and building owner 44-45 Broadway Realty Co., of which he is president, are both listed, however. Moss did not return calls by presstime, but he is quoted in the August 1 press release from Toys "R" Us as saying, "The construction of a store of the caliber and magnitude of Toys "R" Us will be a centerpiece of the revitalization of Times Square. The Bow Tie building is a premier location in Times Square and Toys "R" Us is building a world-class showpiece. It will become an icon that everyone, New Yorkers and tourists alike, will enjoy for years to come."

Gurfein says, "We think that what the defendants did is an end run. They did the deal without us even though we had an exclusive agreement; they defaulted on their agreement. There is evidence out there that during the period in question she [Consolo] was the exclusive leasing agent and that the deal was done then."

He noted that his office is in the process of preparing their "demands for discovery and inspection," which may include anything from tapes to faxes or memos. They expect to receive a copy of the lease and will then be able to determine the exact amount of the lease agreement and the amount her commission should have been.

They are also preparing their list of people to depose. Gurfein notes that the defendants are obliged through the process, which should begin within the next 30 days, to submit to being deposed. Third parties can also be called through subpoena issued by his office.

He says the trial will not begin for another year or two and that a settlement will likely not be reached, at least not until the "eve of the trial," given the amount sought. "We have an expression that these kinds of cases are settled on the steps of the courthouse," he adds. Gurfein says that no decision has yet been made about whether or not a jury would be requested, but he does note, "Juries don't like brokers."

Instant Insights /

Plaintiff's Counsel in Times Square Case: 90-Day Deal Time Evidence Will Prove Exclusivity

Related Stories

Recommended For You