Lee Odell Real Estate, Inc. v North Moore Street Developers, LLC

Lee Odell Real Estate, Inc. v North Moore St. Devs., LLC 2004 NY Slip Op 09001 [13 AD3d 94] December 7, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Lee Odell Real Estate, Inc., Respondent,
v
North Moore Street Developers, LLC, Appellant, et al., Defendant.

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Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 7, 2004, in this action for indemnification of a broker's fee, awarding plaintiff damages against defendant North Moore Street Developers in the principal sum of $670,966.64, and bringing up for review an order, same court and Justice, entered May 6, 2004, which, insofar as challenged, granted plaintiff's motion for summary judgment on its first cause of action and denied North Moore Street Developers' cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the judgment vacated, and both the motion and the cross motion on the underlying order denied.

The indemnity provision is ambiguous as to whether it covers the brokerage commission. Indeed, nowhere is such coverage expressly indicated. Furthermore, a review of the parties' conduct surrounding the agreement is not dispositive as to their intentions. Contrary to plaintiff's contention, the consent agreement, which was signed on the same day the parties executed the operating agreement, begs the question as to what obligations or agreements were in furtherance of North Moore Street Developers' acquisition of the subject property. Concur—Nardelli, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.