Brown Harris Stevens on Site Mktg. & Sales, LLC v One York Prop., LLC

Brown Harris Stevens on Site Mktg. & Sales, LLC v One York Prop., LLC 2010 NY Slip Op 00063 [69 AD3d 424] January 7, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Brown Harris Stevens on Site Marketing and Sales, LLC, Appellant,
v
One York Property, LLC, Respondent.

—[*1] Penn Proefriedt Schwarzfeld & Schwartz, New York (Neal Schwarzfeld of counsel), for appellant.

Ganfer & Shore, LLP, New York (Steven J. Shore of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 17, 2009, which, to the extent appealed from, denied plaintiff's motion for summary judgment with respect to the measure of damages to be awarded on its claim for the balance of an unpaid brokerage commission, unanimously affirmed, without costs.

Plaintiff established its entitlement to the commission from the sale of apartment 6G at 1 York Street in Manhattan because the parties' sales agency agreement is a divisible contract consisting of several distinct and separate items (see Chiarizia v Xtreme Rydz Custom Cycles, 43 AD3d 1353, 1354 [2007]). Although there is no legitimate question as to the amount of the commission plaintiff should be paid for the apartment sale, plaintiff should be denied summary judgment because defendants have counterclaims for an amount equal to or greater than the amount demanded in the complaint (see Stack Elec. v DiNardi Constr. Corp., 161 AD2d 416, 417-418 [1990]; see also Pronti v Grigoriou, 49 AD3d 1135 [2008], citing Illinois McGraw Elec. Co. v John J. Walters, Inc., 7 NY2d 874, 876-877 [1959]). Concur—Friedman, J.P., McGuire, Renwick, Richter and Manzanet-Daniels, JJ.