Spinac v Carlton Group, LTD.

Spinac v Carlton Group, LTD. 2012 NY Slip Op 07067 Decided on October 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2012
Tom, J.P., Andrias, Saxe, DeGrasse, Manzanet-Daniels, JJ.
114579/07 8350A

[*1]8350-Leverett J. Spinac, Plaintiff-Respondent, The

v

Carlton Group, LTD., et al., Defendants, Carlton Advisory Services, Inc., Defenant-Appellant.




Meister Seelig & Fein LLP, New York (Stephen B. Meister of
counsel), for appellant.
Seligson Rothman & Rothman, New York (Stewart E.
Rothman of counsel), for respondent.

Judgment, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 18, 2011, awarding plaintiff damages against defendant employer Carlton Advisory Services, Inc. (CAS) in the amount of $596,846.25, plus interest, costs and disbursements, and bringing up for review an order, same court and Justice, entered April 20, 2010, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as to liability against CAS on the sixth cause of action for commissions earned, and an order, same court and Justice, entered July 13, 2011, which, inter alia, upon renewal and reargument, adhered to the April 20, 2010 order, severed the sixth cause of action and granted plaintiff's motion for a money judgment, unanimously reversed, on the law, without costs, the judgment vacated, plaintiff's motions for partial summary judgment and for a money judgment denied, and the matter remanded for further proceedings. Appeal from the April 20, 2010 order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Initially, the motion court properly granted renewal, as the interest of justice warranted such relief in light of the employer's viable argument as to the meaning of the disputed contract terms and the new facts raised in the employer's renewal affidavits concerning, inter alia, the employer's practice and policy concerning commissions paid to an originator of client business (see generally Mejia v Nanni, 307 AD2d 870 [1st Dept 2003]).

The relevant contract provisions setting forth the basis for a sole originating broker to earn full commissions for originating a client, reasonably construed, as a whole, required the broker to both introduce a client to the employer and satisfy certain "responsibilities" before "a full listing . . . fee" was earned. The motion court's interpretation of the contract's "origination" term as only requiring a client introduction improperly renders other inter-related commission provisions in the contract superfluous, including the "listing" requirement (see generally Chimart Assoc. v Paul, 66 NY2d 570 [1986]). Agreements should be construed as a whole to avoid excessive emphasis on particular words or phrases (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005]). Affidavits submitted on renewal raised triable [*2]issues as to the nature and scope of an originator's responsibilities, including the listing requirement. Conflicting affidavits also raised triable issues of fact as to whether the employer offered to pay undisputed commissions deemed to be owing, and whether plaintiff's refusal to accept such offer (notwithstanding the parties' bona fide dispute as to the extent of commissions owing), undermined the motion court's finding of willfulness on the part of the employer in not actually tendering the wages claimed to be due and owing (see generally Labor Law § 198-a).

We have considered the parties' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2012

CLERK