     05-6566-cv
     Rivkin v. Century 21 Teran Realty LLC

 1                                   UNITED STATES COURT OF APPEALS
 2
 3                                           FOR THE SECOND CIRCUIT
 4
 5                                               -------------
 6
 7                                              August Term 2006
 8
 9       Argued: March 27, 2007                                  Decided: July 23, 2008
10
11               (Question certified to New York Court of Appeals: July
12               12, 2007.
13               Question answered by New York Court of Appeals: April
14               24, 2008.)
15
16                                           Docket No. 05-6566-cv
17
18       --------------------------------------------------X
19
20       OLEG RIVKIN,
21
22                                Plaintiff-Appellant,
23
24                       - against -
25
26       CENTURY 21 TERAN REALTY LLC, ANDREW PECK, CHLOE DRESSER and
27       JOSHUA LUBORSKY,
28
29                                Defendants-Appellees,
30
31       SUSANNE MARTIN and ROBERT MARTIN,
32
33                                Defendants.
34
35       --------------------------------------------------X
36
37               Before:          FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges.
38
39       Plaintiff-Appellant Oleg Rivkin appeals from an oral decision and
40       order of the United States District Court for the Northern
41       District of New York (Sharpe, J.) granting Defendants-Appellees’
42       motion for summary judgment and dismissing all of Rivkin’s
43       claims. This Court certified to the New York Court of Appeals the
44       question whether Defendants-Appellees, acting as buyer’s agents,
45       breached a fiduciary duty to Plaintiff-Appellant by failing to

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 1   disclose the representation of a competing bidder for the
 2   property Plaintiff-Appellant sought to purchase. The Court of
 3   Appeals having answered that question in the negative, the
 4   decision of the district court is now affirmed.
 5
 6
 7                ROBERT J. TOLCHIN, New York, NY, for Plaintiff-
 8                                Appellant.
 9
10                STEPHEN H. VOLKHEIMER, Hiscock & Barclay, LLP, Albany,
11                NY, for Defendants-Appellees.
12
13
14           FEINBERG, Circuit Judge:

15           Plaintiff-Appellant    Oleg     Rivkin    appeals      from    an    oral

16   decision and order of the United States District Court for the

17   Northern District of New York (Sharpe, J.). The district court

18   (1) granted summary judgment to Defendants-Appellees Century 21

19   Teran Realty LLC (hereafter “Teran”), its owners, Andrew Peck and

20   Chloe    Dresser,    and   Joshua     Luborsky,    a    real   estate       broker

21   associated    with   Teran,   and   (2)     dismissed   Rivkin’s      complaint.

22   Plaintiff-Appellant argues that we should reverse the district

23   court and remand. We assume the parties’ familiarity with the

24   underlying facts and procedural history of this case, as set

25   forth in our prior opinion, see Rivkin v. Century 21 Teran Realty

26   LLC, 494 F.3d 99, 100-103 (2d Cir. 2007) (“Rivkin I”).

27           In July 2007, we decided in Rivkin I that this case raised

28   a significant issue of New York law regarding the nature of the

29   fiduciary duty a real estate buyer’s agent owes to the buyer.

30   Since the issue had public policy implications for the State of



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 1   New York and there was no direct state law precedent on that

 2   question, we certified to the New York Court of Appeals the

 3   following    question:      “Did   any    or    all    of   Defendants-Appellees

 4   breach a fiduciary duty to Plaintiff-Appellant Rivkin by failing

 5   to disclose, in any form, Defendants-Appellees’ representation of

 6   a competing buyer for the property Rivkin sought to buy?” Id. at

 7   108.

 8          The New York Court of Appeals accepted certification and in

 9   a unanimous opinion, filed in April 2008, answered the certified

10   question “in the negative.” See Rivkin v. Century 21 Teran Realty

11   LLC,   10   N.Y.3d   344,    357   (2008)      (“Rivkin     II”).    The    Court   of

12   Appeals upheld a buyer’s agent’s duties of “undivided loyalty . .

13   . [and] full disclosure” owed to the buyer under the common law

14   of agency, id. at 355 (quoting Real Property Law § 443(3)(c) &

15   (4)(a)), but the court ruled that only “the buyer’s individual

16   agent” is subject to these fiduciary duties -- not “the agent’s

17   firm,” id. at 356 (emphasis in the original). The court reasoned

18   that, when two or more real estate brokers, affiliated with the

19   same firm, represent different bidders on the same property, they

20   “have every reason to negotiate in their clients’ best interest,”

21   consistent with their fiduciary duties, because they “only earn

22   commissions    for   sales    to   their       own    clients.”     Id.    Therefore,

23   although the court acknowledged that “[a]n individual agent . . .

24   may not represent multiple buyers bidding on the same property


                                              -3-
 1   without     making        disclosure        and       obtaining       consent”         from     the

 2   multiple prospective buyers involved, id. at 357, it concluded

 3   that     “unless      a     real     estate       brokerage       firm        and      principal

 4   specifically agree otherwise, the firm is not obligated to insure

 5   that its affiliated licensees forgo making offers on behalf of

 6   other buyers for property on which the principal has already

 7   bid.” Id. at 356. It was clear from the record that Rivkin’s

 8   individual agent (Luborsky) did not represent multiple buyers in

 9   the     transaction,         thus    fully        complying       with      his     duties      to

10   Plaintiff-Appellant. Id. at 350-51.

11           Thereafter, we gave the parties an opportunity to comment

12   in     letter    briefs      on     the     opinion      in     Rivkin      II.        Plaintiff-

13   Appellant,      in    his     letter-brief,           argued    that     we    should         still

14   reverse the district court’s ruling and remand. He claimed that,

15   even though Teran owed him no fiduciary duty of loyalty and full

16   disclosure under New York law, as defined by the New York Court

17   of    Appeals    in    Rivkin       II,     Teran      had    assumed       such       duties    by

18   contract.       In    Plaintiff-Appellant’s              view,     Rivkin         II    did     not

19   address his theory of a contract-based fiduciary relationship

20   between     Teran      and    himself.          Consequently,         Plaintiff-Appellant

21   argues, the New York Court of Appeals’ opinion is not dispositive

22   of all the issues on appeal. Plaintiff-Appellant reiterates his

23   claim, originally made to us in his appeal from the district

24   court,    that       apart    from        the    legal       duties    to     which      Teran’s


                                                     -4-
 1   employees    are    subject    on    an     individual      basis    a    number       of

 2   circumstances      in   this       case    indicate     the    existence         of     a

 3   contractually-created fiduciary duty of loyalty and disclosure

 4   owed by Teran itself. 1 At the very least, Plaintiff-Appellant

 5   urges us to find that triable issues of fact remained as to the

 6   existence    and    scope     of    such     a    contractually-created              duty,

 7   warranting reversal of the district judge’s grant of summary

 8   judgment for Defendant-Appellees.

 9         We    are    unpersuaded       by    Plaintiff-Appellant’s              arguments

10   before us now and decline his invitation to remand the case to

11   the   district     court.     We    remind       Plaintiff-Appellant          that     the

12   certified question specifically asked whether “any or all of

13   Defendants-Appellees        breach[ed]       a    fiduciary   duty       to    Rivkin.”

14   Rivkin I, 494 F.3d at 108 (emphasis added). Our framing the

15   question in this broad manner allowed the Court of Appeals to

16   explore     different   theories          pursuant     to   which    a        fiduciary

17   relationship might have existed under the facts of the case. When

18   certifying, we explicitly stated that “the certified question may

19   be deemed expanded to cover any further pertinent question of New


           1
                 In his original brief to us, Plaintiff-Appellant raised the
           issue of the voluntary assumption by Teran of fiduciary duties by
           agreement. We note that his brief, as well as the entire record of
           the case filed with this Court, was transmitted to the New York
           Court of Appeals, along with our certification opinion. See Rivkin
           I, 494 F.3d at 108. The New York Court of Appeals was therefore
           aware of the parties’ arguments to this Court leading to our
           decision in Rivkin I. If Plaintiff-Appellant had any doubts about
           the completeness of the New York Court of Appeals’ review of his
           arguments, he could certainly have petitioned that court for a
           rehearing of the case, but apparently did not do so.
                                               -5-
 1   York       law   involved    in    this   appeal      that   the     Court       of   Appeals

 2   chooses to answer.” Id. In the end, that court clearly answered

 3   the certified question in the negative, thus finding that Teran

 4   (1) had no fiduciary duty to Rivkin; and (2) did not commit any

 5   fiduciary breach by failing to disclose the representation by a

 6   different agent of the firm of a competing buyer for the property

 7   Rivkin sought to buy. Rivkin II, 10 N.Y.3d at 357.

 8          The New York Court of Appeals expressly recognized that

 9   there could be an agreement between a real estate brokerage firm

10   and a prospective buyer, through which the firm could undertake

11   fiduciary        duties     otherwise     not    imposed       by    law.    Id.      at   356

12   (“unless a real estate brokerage firm and principal specifically

13   agree otherwise, the firm is not obligated to insure that its

14   affiliated        licensees       forgo   making      offers    on    behalf       of   other

15   buyers”)(emphasis added). The New York Court of Appeals also took

16   into account and quoted the statutorily-mandated terms of the

17   disclosure form entitled “Disclosure Regarding Real Estate Agency

18   Relationship”        which     Defendant        Luborsky,      as    Rivkin’s         buyer’s

19   broker, presented to his client and which Rivkin himself signed.

20   Rivkin II, 10 N.Y.3d at 353 (quoting former N.Y. Real Property

21   Law    §    443(4)   which    prescribed        the    content      of   the     disclosure

22   form).       Accordingly,     in    deciding      that   there       was    no    fiduciary

23   breach by Teran, the court was obviously not satisfied that this

24   form was tantamount to an agreement giving rise to contractual


                                                -6-
 1   duties    not    prescribed     by    the   common   law    of    agency.   Rivkin

 2   additionally relies on the language in the Buyer Agency Agreement

 3   form published on Teran’s website. But that model agreement, as

 4   Rivkin himself concedes, was never signed by either Luborsky or

 5   Rivkin; his reliance is, therefore, misplaced. Before responding

 6   to the certified question in the negative, the New York Court of

 7   Appeals assessed the parties’ allegations against the factual

 8   record and in the most categorical terms concluded that Teran’s

 9   conduct    did   not   amount    to    violation     of    any   duty,   legal    or

10   contractual, owed to Rivkin.

11        We cannot revisit the conclusions of the New York Court of

12   Appeals.   Plaintiff    asks     us    to   disregard     the    decision   of   New

13   York’s highest court on a determinative substantive issue that

14   requires us to interpret and apply New York law. This we cannot

15   do. “[T]he interpretation placed by the highest court of the

16   state upon its statutes is conclusive here.” Smiley v. Kansas,

17   196 U.S. 447, 455 (1905).

18        For the foregoing reasons, we AFFIRM the ruling of the

19   district court.




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