Rich Town Realty, Inc. v Kim's Intl., Inc.

Rich Town Realty, Inc. v Kim's Intl., Inc. 2012 NY Slip Op 00473 Decided on January 26, 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 January 26, 2012
Mazzarelli, J.P., Saxe, Catterson, Acosta, Román, JJ.
6638N 600618/10

[*1]Rich Town Realty, Inc., Plaintiff-Respondent,

v

Kim's International, Inc., Defendant-Appellant.




Sim & Park, LLP, New York (Sang J. Sim of counsel), for
appellant.
Goetz Fitzpatrick, LLP, New York (Bernard Kobroff of
counsel), for respondent.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered March 4, 2011, which denied defendant's motion to vacate a default judgment, unanimously affirmed, with costs.

The court properly denied defendant's motion to vacate the default. In order to succeed on its motion, defendant was required pursuant to either CPLR 317 or CPLR 5015 (a)(1) to establish a meritorious defense. Defendant failed to do so because the original commission agreement stated that its terms could not be changed orally. Evidence of any alleged oral modification to decrease the broker's commission from $500,000 to $250,000 is barred by the explicit terms of the commission
agreement (see General Obligations Law § 15-301[1]; Rose v Spa Realty Assoc., 42 NY2d 338, [1977]; Ralco, Inc. v Citibank, N.A., 32 AD3d 301 [2006]). Indeed, when the parties first agreed to modify the terms of payment of the broker's commission, they executed a writing in compliance with the original commission agreement. Thus, contrary to defendant's contention, the subsequent agreement affects the original agreement only as
to how the broker's commission would be paid.

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

ENTERED: JANUARY 26, 2012

CLERK