As you know, the Commission Escrow Act has been in effect since January 1, 2009. Each County (Nassau, Suffolk, and Queens) has its own set of rules as it relates to the Commission Escrow Act. Below is a discussion of the particular requirements and recommendations of each County.

Filing in Nassau County

1. The Affidavit of Entitlement is filed with the County Clerk’s Office, located at 240 Old Country Road, Mineola, New York 11501 (516-571-2664).
2. The Fees are as follows: $40.00 recording fee, $10.00 per block fee, and $5.00 per page fee for filing the Affidavit of Entitlement.
3. All checks are made payable t o t he Nassau County Clerk.
4. Nassau County Clerk’s Office recommends that the broker have an Affidavit of Service prepared in proof that the Affidavit of Entitlement and the $25.00 Recording Fee was served on the seller in accordance with the statute, although the Commission Escrow Act (RPL §294-b) does not require an Affidavit of Service.
5. Nassau County Clerk’s Office said that they would accept the Affidavit of Service and file it along with the Affidavit of Entitlement. Procedurally, the Affidavit of Service would be filed after the filing of the Affidavit of Entitlement since according to the statute, the broker must serve the seller with a copy of the Affidavit of Entitlement and a check in the amount of $25.00 within 5 business days (excluding Saturday, Sunday, and public holidays) of filing the Affidavit of Entitlement.
   Please note that the broker must serve a copy of the Affidavit of Entitlement on the owner by registered or certified mail, return receipt requested, or by personal delivery. The service must be made to the owner’s address as set forth in the written listing agreement. If the closing will occur in 5 business days or less from the filing of the Affidavit of Entitlement, then the broker must personally serve the seller.
   Having an Affidavit of Service is a good way to prove that service of the Affidavit of Entitlement on the seller was made. However, when using an Affidavit of Service someone other than a party to the action must serve the seller.
   LIRealtor.com has a sample Affidavit of Service for your convenience in the “Documents on Demand” section under the heading “Affidavit of Service”. This Affidavit of Service has been prepared to use with the Commission Escrow Act as proof of service of the Affidavit of Entitlement, and not for use in other court proceedings.
6. If the commission money is deposited by the seller in the County Clerk’s Office, the money is held in the County Treasurer’s Office.
7. You can call the Nassau County Clerk’s Office at 516-571-2664 for assistance with the Commission Escrow Act.

Filing in Suffolk County

1. The Affidavit of Entitlement is filed with the County Clerk’s Office, located at 310 Center Drive, Riverhead, New York 11901 (631-852-2000).
2. The Fees are as follows: $45.00 fee for the first page; $5.00 fee each additional page.
3. All checks are made payable to the Suffolk County Clerk’s Office .
4. Suffolk County will accept an Affidavit of Service for filing (like Nassau County).
5. If the commission money is deposited by the seller in the County Clerk’s Office, the money is held in the County Treasurer’s Office.

Filing in Queens County

1. The Affidavit of Entitlement is filed with the City Register’s Office, located at 144 - 06 94th Avenue, Jamaica, New York (718-298-7200).
2. The Fees are as follows: $42.00 for the first page; $5.00 each additional page.
3. All checks are made payable to the Ne w York City Department of Finance.
4. Queens County will NOT accept the Affidavit of Service for filing.
5. If the commission money is deposited by the seller in the City Register’s Office, the money is held in the office of Commissioner of Finance.
6. A Recording and Endorsement cover page is required when filing the Affidavit of Entitlement. This Recording and Endorsement cover page can be obtained and created in the Automated City Register Information System (ACRIS). ACRIS is available via the internet 24/ 7 at www.nyc.gov/acris. Also, brokers can go to the Queens County recording office located at 144-06 94th Avenue, Jamaica, New York where there are public terminals and staff available to assist with questions and instructions on how to use the ACRIS system. Brokers can also call the Queens County helpdesk at 212-487-6300 with any questions regarding the ACRIS system.
   Once the Recording and Endorsement cover page is created and the broker is ready to file the Affidavit of Entitlement the broker has two options in Queens County. The broker can either mail or submit in person the documents (Recording and Endorsement cover page, properly filled out Affidavit of Entitlement, and the written listing agreement) to the Queens County recording office located at 144-06 94th Avenue, Jamaica, New York. However, we strongly recommend that the broker brings the documents in person to the Queens County recording office instead of mailing them so tha t the broker can obtain a certified copy in proof of filing those documents in order to comply with the serving requirements of the Commission Escrow Act (as discussed above). The broker should ask for three certified copies, one to serve on the owner, one for the broker’s records, and one for the owner’s attorney if applicable.
7. Payment of the fees can be made on line when the broker creates the Recording and Endorsement cover page in the ACRIS system, or at the time the documents are submitted in person at the Queens County recording office.

Retrieval of Funds in Nassau, Suffolk, and Queens Counties

All three counties require a motion to be made in order to retrieve the funds deposited with either the County Clerks’ Offices or the City Register’s Office. The Commission Escrow Act states that the commission money that is deposited with one of those offices is “deemed to be paid into court”. Therefore, in order to retrieve those monies, whether from the result of a lawsuit or a settlement between the parties, the party seeking to obtain the money must make a motion to the court.

For your convenience, we have included sample motions on LIRealtor.com under the “Documents on Demand” heading. The motion papers are entitled “Notice of Motion To Withdraw Money Paid Into Court”, “Order for Payment Of Money Out Of Court” and “Affidavit In Support of Motion to Obtain Order For Payment of Money Out of Court”. You may use these motion papers to retrieve the money deposited with the County Clerk or City Register after there has been a determination in a lawsuit that you have been awarded the money, or after you have reached a written settlement with the other party stating that you are entitled to the commission money. You may fill out these motion papers and file them with the court on your own, or with an attorney.

When these motion papers are filed with the court they must be accompanied by a copy of any papers which show that the demand was made pursuant to RPL 294-b that the disputed commission money be deposited with the County Clerk’s Office or the City Register’s Office, together with a certificate of the County Treasurer or Commissioner of Finance showing the current balance, including principal and interest. All three motion papers must be filled out and served on the court.

Queens County City Register’s Office has additional requirements. The motion papers must include a Certificate of Deposit and a copy of the Application to the Commissioner of Finance for a Certificate of Deposit. The Application to the Commissioner of Finance for a Certificate of Deposit can be found on LIRealtor.com “Documents on Demand”, under the heading “Application to the Commissioner of Finance for a Certificate of Deposit”. The applicant should fill out the Application and file it with the Commissioner of Finance. The Finance Department will return one copy of the Application along with the Certificate of Deposit. The Certificate of Deposit shows exactly how much money is currently in the trust, including accrued interest. Then the party must attach the Application and Certificate of Deposit with the motion papers and file it with the Court. After the judge signs the order, the party must take a copy of the signed court order to the Clerk of the Court and have it certified. There is a fee for this certification. A certified court order is required for withdrawal of funds. The party must then complete a W-9 form, providing his or her tax identification number. The party then submits the certified copy of the court order, with the W-9 form, and any other documents requested by Finance, by mail or in person to NYC Department of Finance, Treasury Division, Client Services, 1 Centre Street , Room 2200, New York, NY 10007. When Finance receives these forms, the order will be processed and a check will be mailed to the claimant. Finance will deduct a fee of two percent of the money held for administering the trust.

We hope that this article has been helpful and informative. Should you have any questions, please call the Legal Helpline at 631-236-4105.