Cutler v Silver

[*1] Cutler v Silver 2010 NY Slip Op 50901(U) [27 Misc 3d 138(A)] Decided on May 20, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 20, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570117/10.

Joanna Cutler, Plaintiff-Respondent,

against

Richard Silver, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered December 29, 2009, which, upon a prior order granting summary judgment, awarded plaintiff damages in the principal sum of $19,440.

Per Curiam.

Judgment (Jose A. Padilla, J.), entered December 29, 2009, affirmed, with $25 costs.

Plaintiff broker made a prima facie showing of entitlement to judgment as a matter of law on her cause of action to recover a commission, since she demonstrated the existence of a binding brokerage agreement between the parties and defendant's breach thereof (see generally Cushman & Wakefield, Inc. v Dollar Land Corp., 44 AD2d 445 [1974], affd 36 NY2d 490 [1975]). Defendant, who signed the enforceable written lease agreement upon which plaintiff's claim is founded, failed to raise a triable issue (see generally Kaplon-Belo Assoc. v Farrelly, 221 AD2d 321 [1995]).

We reject defendant's contention that summary judgment in plaintiff's favor is inappropriate because plaintiff failed to join as a necessary party an individual, Kimberley, claimed by defendant to have been plaintiff's co-broker. Defendant failed to establish that Kimberley must be a party to this action to accord complete relief between the parties or that Kimberley would be inequitably affected by a judgment in this action (see CPLR 1001[a]). We note in this connection that, prior to the commencement of the action, defendant tendered a check, payment on which was stopped before it was negotiated, to plaintiff (and plaintiff alone) for the commission, and that Kimberley submitted an affidavit on a prior motion in this action averring that she had an agreement with plaintiff (not defendant) pursuant to which plaintiff would pay her a share of the commission.

We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 20, 2010