Schacker Real Estate Corp. v Lusitano Enters., Inc.
Annotate this CaseDecided on September 15, 2006
Supreme Court, Suffolk County
Schacker Real Estate Corp., Plaintiff,
against
Lusitano Enterprises, Inc., Defendant
24982-2005
Reisman, Peirez & Reisman, LLP
Attorneys for Plaintiff
1305 Franklin Avenue
Garden City, New York 11530
Thomas Persichilli, Esq.
Attorney for Defendant
1550 Deer Park Avenue
Deer Park, New York 11729
Peter H. Mayer, J.
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing [*2]papers, the motion is decided as follows: it is
ORDERED that the motion by the plaintiff for summary judgment pursuant to CPLR 3212 is hereby denied;
ORDERED that counsel for the movant shall serve a copy of this Order with Notice of Entry upon all parties within twenty (20) days from the date of this Order pursuant to CPLR §2103(b)(1),(2) or (3) and shall thereafter file the affidavit(s) of service with the Suffolk County Clerk; and it is further
ORDERED that counsel for all parties shall appear for a preliminary conference to be held at 9:30 a.m. on October 10, 2006 in the Courtroom of the undersigned located at 210 Center Drive, Riverhead, New York.
In this action, the plaintiff real estate corporation alleges that the defendant general contractor breached an agreement to pay the plaintiff 6% commission in connection with the defendant's construction of a building for non-party, Capy Machine Shop, Inc., on property owned by Capy in Melville, New York. The parties agree that they never entered into a formal commission agreement. Although a sale of the property was never effectuated, the plaintiff's president, Philip Shwom, alleges that he introduced C. Nicholas Leberatoscioli, president of the defendant corporation, to Capy, and that he participated in various meetings regarding the construction project. The plaintiff contends that its involvement and services resulted in Capy's award of the construction project to the defendant, and that it is, therefore, entitled to a commission of $150,000.00, or 6% of the $2,500,000.00 project amount.
The defendant denies that any commission agreement existed between the parties, although admits that the plaintiff was informally enlisted to attempt to broker a sale of the Capy premises to the defendant. As the owner of the property adjacent to the Capy property, the defendant contends that it had previously known through other sources that Capy was contemplating construction of a building on the particular site. Defendant further denies that the plaintiff had any involvement with the project after the plaintiff's attempts to broker a sale of the property failed. In support of its motion, the plaintiff submits letters from the defendant purporting to confirm a commission agreement. The defendant contends that these letters were mere attempts to avoid a dispute and were not reflective of any alleged agreement.
It is well settled that summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact or where an issue of fact is even arguable since it deprives a party of his day in court (Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]; see also, Henderson v City of New York, 178 AD2d 129, 576 NYS2d 562 [1st Dept 1991]). Issue finding rather than issue determination is the key to the procedure (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). Since summary judgment is the procedural equivalent of a trial, if there is any doubt as to the existence of a triable issue, or where a material issue of fact is even "arguable," summary judgment must be denied (Phillips v Kantor & Co., 31 NY2d 307, 338 [*3]NYS2d 882 [1982]); Rotuba v Cepcos, 46 NY2d 223, 413 NYS2d 141 [1978]; Freeman v Easy Glider Roller Rink Inc., 114 AD2d 436, 494 NYS2d 351 [2d Dept 1985]). Furthermore, the proof of the party opposing the motion must be accepted as true and considered in a light most favorable to the opposing party (Dowsey v Megerian, 121 AD2d 497, 503 NYS2d 591 [2d Dept 1986]; Museums at Stony Brook v The Village of Patchogue Fire Department, 146 AD2d 572, 536 NYS2d 177 [2d Dept 1989]; Matter of Benincasa v Garrubbo, 141 AD2d 636, 529 NYS2d 797 [2d Dept 1988]).
In a contract action, when the intention of the parties is fully determinable from the language employed in the agreement, and there is no need to resort to evidence outside the written words to determine the intention of the parties, then summary judgment is proper (Long Island R.R. Co. v Northville Industries Corp., 41 NY2d 455; 393 NYS2d 925 [1977]). However, a motion for summary judgment should be denied if critical contractual language raises a question with respect to the true intent of the parties (Mayland v Craighead, 144 AD2d 344; 533 NYS2d 946 [2d Dept 1988]). In fact, "where the intent must be determined by disputed evidence or inferences outside the written words of the instrument, a question of fact is presented which warrants the denial of summary judgment" (Id., 144 AD2d at 346, 533 NYS2d at 948) (quoting, Boyarsky v Froccaro, 131 AD2d 710, 344 NYS2d 925 [2d Dept 1973]; see also, Aronson v Riley, 59 NY2d 770, 464 NYS2d 723 [1983]).
Based upon all submissions, questions of fact exist concerning whether or not a commission agreement existed between the parties and, if so, whether or not such agreement was applicable to the construction project, as opposed to a brokered sale of the property. Questions of fact also exist regarding what, if any, commission would apply under such circumstances. In an effort to prove that 6% commission is customary for transactions of this type, the plaintiff submits letters from two entities purporting to claim that 6% commission is customary; however, these unsworn letters are inadmissible. The defendant notes that while 6% commission may be customary in sales situations, even if the plaintiff is able to prove entitlement to any commission, 6% would not apply under the circumstances of this case. Consequently, questions of fact also exist on the issue of damages.
Based on the foregoing, the plaintiff's motion must be denied.
Dated:
PETER H. MAYER, J.S.C.
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