Xoleg Rivkin v. CENTURY 21 TERAN REALTY LLC, ANDREW PECK, CHLOE DRESSER and JOSHUA LUBORSKY

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05-6566-cv
Rivkin v. Century 21 Teran Realty LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term 2006
Argued: March 27, 2007 Decided: July 23, 2008
(Question certified to New York Court of Appeals: July
12, 2007.
Question answered by New York Court of Appeals: April
24, 2008.)
Docket No. 05-6566-cv
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OLEG RIVKIN,
Plaintiff-Appellant,
- against -
CENTURY 21 TERAN REALTY LLC, ANDREW PECK, CHLOE DRESSER and
JOSHUA LUBORSKY,
Defendants-Appellees,
SUSANNE MARTIN and ROBERT MARTIN,
Defendants.
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Before: FEINBERG, SOTOMAYOR and KATZMANN, Circuit Judges.
Plaintiff-Appellant Oleg Rivkin appeals from an oral decision and
order of the United States District Court for the Northern
District of New York (Sharpe, J.) granting Defendants-Appellees’
motion for summary judgment and dismissing all of Rivkin’s
claims. This Court certified to the New York Court of Appeals the
question whether Defendants-Appellees, acting as buyer’s agents,
breached a fiduciary duty to Plaintiff-Appellant by failing to

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disclose the representation of a competing bidder for the
property Plaintiff-Appellant sought to purchase. The Court of
Appeals having answered that question in the negative, the
decision of the district court is now affirmed.
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ROBERT J. TOLCHIN, New York, NY, for Plaintiff-
Appellant.
STEPHEN H. VOLKHEIMER, Hiscock & Barclay, LLP, Albany,
NY, for Defendants-Appellees.
FEINBERG, Circuit Judge:
Plaintiff-Appellant Oleg Rivkin appeals from an oral
decision and order of the United States District Court for the
Northern District of New York (Sharpe, J.). The district court
(1) granted summary judgment to Defendants-Appellees Century 21
Teran Realty LLC (hereafter “Teran”), its owners, Andrew Peck and
Chloe Dresser, and Joshua Luborsky, a real estate broker
associated with Teran, and (2) dismissed Rivkin’s complaint.
Plaintiff-Appellant argues that we should reverse the district
court and remand. We assume the parties’ familiarity with the
underlying facts and procedural history of this case, as set
forth in our prior opinion, see Rivkin v. Century 21 Teran Realty 25
LLC, 494 F.3d 99, 100-103 (2d Cir. 2007) (“Rivkin I”). 26
In July 2007, we decided in Rivkin I that this case raised
a significant issue of New York law regarding the nature of the
fiduciary duty a real estate buyer’s agent owes to the buyer.
Since the issue had public policy implications for the State of
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New York and there was no direct state law precedent on that
question, we certified to the New York Court of Appeals the
following question: “Did any or all of Defendants-Appellees
breach a fiduciary duty to Plaintiff-Appellant Rivkin by failing
to disclose, in any form, Defendants-Appellees’ representation of
a competing buyer for the property Rivkin sought to buy?”
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Id. at
108.
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The New York Court of Appeals accepted certification and in
a unanimous opinion, filed in April 2008, answered the certified
question “in the negative.” See Rivkin v. Century 21 Teran Realty
LLC
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, 10 N.Y.3d 344, 357 (2008) (“Rivkin II”). The Court of
Appeals upheld a buyer’s agent’s duties of “undivided loyalty . .
. [and] full disclosure” owed to the buyer under the common law
of agency,
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id. at 355 (quoting Real Property Law § 443(3)(c) &
(4)(a)), but the court ruled that only “the buyer’s
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firm,” id. at 356 (emphasis in the original). The court reasoned
that, when two or more real estate brokers, affiliated with the
same firm, represent different bidders on the same property, they
“have every reason to negotiate in their clients’ best interest,”
consistent with their fiduciary duties, because they “only earn
commissions for sales to their own clients.”
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Id. Therefore,
although the court acknowledged that “[a]n individual agent . . .
may not represent multiple buyers bidding on the same property
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without making disclosure and obtaining consent” from the
multiple prospective buyers involved,
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id. at 357, it concluded
that “unless a real estate brokerage firm and principal
specifically agree otherwise, the firm is not obligated to insure
that its affiliated licensees forgo making offers on behalf of
other buyers for property on which the principal has already
bid.”
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Id. at 356. It was clear from the record that Rivkin’s
individual agent (Luborsky) did not represent multiple buyers in
the transaction, thus fully complying with his duties to
Plaintiff-Appellant.
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Id. at 350-51. 10
11 Thereafter, we gave the parties an opportunity to comment
in letter briefs on the opinion in Rivkin II. Plaintiff-
Appellant, in his letter-brief, argued that we should still
reverse the district court’s ruling and remand. He claimed that,
even though Teran owed him no fiduciary duty of loyalty and full
disclosure under New York
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law, as defined by the New York Court
of Appeals in
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Rivkin II, Teran had assumed such duties by 17
contract. In Plaintiff-Appellant’s view, Rivkin II did not
address his theory of a contract-based fiduciary relationship
between Teran and himself. Consequently, Plaintiff-Appellant
argues, the New York Court of Appeals’ opinion is not dispositive
of all the issues on appeal. Plaintiff-Appellant reiterates his
claim, originally made to us in his appeal from the district
court, that apart from the legal duties to which Teran’s
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employees are subject on an individual basis a number of
circumstances in this case indicate the existence of a
contractually-created fiduciary duty of loyalty and disclosure
owed by Teran itself.
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1 At the very least, Plaintiff-Appellant
urges us to find that triable issues of fact remained as to the
existence and scope of such a contractually-created duty,
warranting reversal of the district judge’s grant of summary
judgment for Defendant-Appellees.
We are unpersuaded by Plaintiff-Appellant’s arguments
before us now and decline his invitation to remand the case to
the district court. We remind Plaintiff-Appellant that the
certified question specifically asked whether “any or all of
Defendants-Appellees breach[ed] a fiduciary duty to Rivkin.”
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Rivkin I, 494 F.3d at 108 (emphasis added). Our framing the
question in this broad manner allowed the Court of Appeals to
explore different theories pursuant to which a fiduciary
relationship might have existed under the facts of the case. When
certifying, we explicitly stated that “the certified question may
be deemed expanded to cover any further pertinent question of New
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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.

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York law involved in this appeal that the Court of Appeals
chooses to answer.”
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Id. In the end, that court clearly answered
the certified question in the negative, thus finding that Teran
(1) had no fiduciary duty to Rivkin; and (2) did not commit
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any
fiduciary breach by failing to disclose the representation by a
different agent of the firm of a competing buyer for the property
Rivkin sought to buy.
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Rivkin II, 10 N.Y.3d at 357. 7
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The New York Court of Appeals expressly recognized that
there could be an agreement between a real estate brokerage firm
and a prospective buyer, through which the firm could undertake
fiduciary duties otherwise not imposed by law. Id. at 356
(“
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unless a real estate brokerage firm and principal specifically 12
agree otherwise, the firm is not obligated to insure that its
affiliated licensees forgo making offers on behalf of other
buyers”)(emphasis added). The New York Court of Appeals also took
into account and quoted the statutorily-mandated terms of the
disclosure form entitled “Disclosure Regarding Real Estate Agency
Relationship” which Defendant Luborsky, as Rivkin’s buyer’s
broker, presented to his client and which Rivkin himself signed.
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Rivkin II, 10 N.Y.3d at 353 (quoting former N.Y. Real Property
Law § 443(4) which prescribed the content of the disclosure
form). Accordingly, in deciding that there was no fiduciary
breach by Teran, the court was obviously not satisfied that this
form was tantamount to an agreement giving rise to contractual
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duties not prescribed by the common law of agency. Rivkin
additionally relies on the language in the Buyer Agency Agreement
form published on Teran’s website. But that model agreement, as
Rivkin himself concedes, was never signed by either Luborsky or
Rivkin; his reliance is, therefore, misplaced. Before responding
to the certified question in the negative, the New York Court of
Appeals assessed the parties’ allegations against the factual
record and in the most categorical terms concluded that Teran’s
conduct did not amount to violation of
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any duty, legal or
contractual, owed to Rivkin.
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We cannot revisit the conclusions of the New York Court of
Appeals. Plaintiff asks us to disregard the decision of New
York’s highest court on a determinative substantive issue that
requires us to interpret and apply New York law. This we cannot
do. “[T]he interpretation placed by the highest court of the
state upon its statutes is conclusive here.” Smiley v. Kansas,
196 U.S. 447, 455 (1905).
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For the foregoing reasons, we AFFIRM the ruling of the
district court.

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