Tuccio v Garry Smith Props., LLC
Annotate this CaseDecided on August 14, 2006
Supreme Court, Suffolk County
Edwin Fishel Tuccio, Plaintiff,
against
Garry Smith Properties, LLC, Defendant.
0010682/2005
MURRAY B. SCHNEPS, ESQ.
Atty. for Plaintiff
1 Union Square, P.O. Box 1080
Aquebogue, NY 11931
JASPAN SCHLESINGER HOFFMAN, LLP
By: Linda S. Agnew, Esq.
Attys. for Defendant
300 Garden City Plaza
Garden City, NY 11530
John J. J. Jones, J.
Upon the following papers numbered 1 to28read on this motion and cross-motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers
1-14 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 15-24 ; Replying Affidavits and supporting papers 25-26; 27-28 ; Other; it is
ORDERED that this motion by plaintiff, Edwin Fishel Tuccio, for an order awarding summary judgment in his favor is granted and plaintiff shall recover from the defendant his commission in the amount of $66,000, plus interest from January 21, 2005, costs and disbursements; and it is further [*2]
ORDERED that the cross-motion by defendant, Garry Smith Properties, LLC (Smith), for an order dismissing the complaint is denied.
Plaintiff is a licensed real estate broker who commenced this action by filing a summons with notice on April 27, 2005 to recover real estate commissions allegedly owed under a brokerage agreement entered into between the parties in or about July 1998. Plaintiff claims that the agreement provided for the payment of a 6% commission in the event he was the procuring broker for property the defendant wanted to sell. It is alleged that plaintiff introduced Day Star Community Development Corp. (Day Star), a prospective purchaser for defendant's property on East Main Street in Riverhead, New York, and an offer was made in the amount of $825,000. On or about December 14, 1998, Day Star and Smith entered into a written contract of sale for the property, in which it was acknowledged that "PURCHASER has not dealt with any broker in connection with this sale other than EDWIN FISHEL TUCCIO REAL ESTATE, and SELLER agrees to pay the broker the commission earned thereby (pursuant to separate agreement)." A dispute arose, and Day Star commenced an action under Suffolk County index number 02386/02 against Smith. Among the allegations asserted by Day Star in its verified complaint against Smith is that "on or about the 7th day of November, 2000, Daystar and Smith did enter into an amendment of the contract of sale" which modified the obligations between the parties. On or about October 21, 2004, Day Star and Smith resolved the action between them by settlement, and stipulated to proceed to the closing of title for the increased sale price of $1,100,000.00. Title to the property was transferred to Day Star on or about January 21, 2005.
In its answer to the complaint, defendant Smith set forth four affirmative defenses: failure to state a cause of action, that the claim is barred by the statute of limitations, that the claim is barred by the statute of frauds, and that the claim is barred by the doctrine of laches. Plaintiff now moves for summary judgment in his favor. Defendant has cross-moved for dismissal of the complaint on the ground that plaintiff's claim is barred by the statute of limitations.
In support of his contention that the affirmative defenses asserted in defendants' answer lack merit, plaintiff has submitted a copy of a commission agreement dated July 24, 1998 signed by him, but not signed by defendant. The agreement sets forth that plaintiff "is the sole broker who brought about the . . . sale" between Smith and Day Star, and that "the commission to be paid to the above named broker is in the amount of ($49,500.) dollars." It is also stated in the agreement that the "commission is due and payable to the above named broker as, if and when title passes, except for willful default on the part of the seller, in which case the commission shall be payable upon demand after said default." According to the plaintiff, he signed and sent the commission agreement to the defendant on July 24, 1998. While defendant does not dispute the fact that plaintiff introduced the purchaser of the property and thereby earned a commission, defendant denies that there was a written brokerage agreement. By executing the contract with Day Star, however, defendant acknowledged the existence of an agreement with Tuccio and its prospective obligation to pay a commission. Furthermore, defendant does not dispute plaintiff's specific assertion that they had agreed if plaintiff procured a buyer for the property, defendant would pay plaintiff a 6% commission on the sale price. Defendant claims, however, that plaintiff's commission was earned when the contract of sale was executed in December 1998, not [*3]when title to the property was transferred in 2005, and that the statute of limitations on plaintiff's claim has expired.
Notwithstanding the foregoing, defendant admits that by letters dated October 1, 2001 and November 7, 2001, it notified counsel for Day Star that it was taking the position that Day Star had defaulted on certain obligations under the terms of the contract of sale. Thus, defendant's position at the time was that the purchaser had not demonstrated that it was ready, willing and able to consummate the sale, and defendant ultimately cancelled the contract and retained the down payment as liquidated damages. Nevertheless, the sale eventually was consummated after the lawsuit between the parties was resolved in October 2004, the parties reached a meeting of the minds, and Day Star demonstrated its readiness, willingness and ability by completing its purchase of the property in accordance with the terms of the settlement agreement.
Although it is generally the case that a real estate broker will be entitled to a commission when the broker produces a purchaser who is ready, willing, and able to purchase on the seller's terms, "the broker's right to a commission may be varied by agreement" (Battery Park Realty, Inc. v RKO Del., Inc., 18 AD3d 680, 681, 795 NYS2d 351 [2d Dept 2005], quoting Pantigo Realty v Estate of Schrenko, 249 AD2d 525, 525, 672 NYS2d 369). In this case, the undisputed facts demonstrate that plaintiff procured a buyer who was ready, willing and able to purchase the defendant's property under the terms of a settlement reached on or about October 21, 2004, and that title to the property transferred on January 21, 2005. It is also undisputed that under the terms of the agreement among the parties, the defendant seller agreed to pay the plaintiff's commission, and that such commission amounted to 6% of the purchase price. Under the facts of this case, plaintiff has demonstrated his right to a commission and that each of the affirmative defenses asserted by defendant are without merit. Furthermore, defendant has failed to raise a triable issue of fact. Since the property was sold ultimately for the price of $1,100,000, plaintiff is entitled to recover from defendant a commission in the amount of $66,000, plus interest, costs and disbursements.
Enter judgment accordingly.
HON. JOHN J.J. JONES, JR.
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