Murphy v Diversified Residential & Commercial Servs., Inc.

[*1] Murphy v Diversified Residential & Commercial Servs., Inc. 2013 NY Slip Op 50265(U) Decided on February 21, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570447/12.

Bernard Murphy, Plaintiff-Respondent, - -

against

Diversified Residential and Commercial Services, Inc., Defendant-Appellant.

Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered on or about May 26, 2010, after trial, in favor of plaintiff and awarding him damages in the principal sum of $2,600.

Per Curiam.

Judgment (Fernando Tapia, J.), entered on or about May 26, 2010, reversed, without costs, and action dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to establish entitlement to a return of the commission he paid directly to the defendant real estate broker, it being undisputed on this record that plaintiff remained in possession of the demised residential apartment for several months after entering into a lease agreement with the (nonparty) landlord. Absent an agreement to the contrary, not here shown, "a real estate broker earns his commission when he produces a party who is ready, willing and able to purchase or lease on the terms set by the seller lessor" (Kaplan-Belo Assocs., Inc. v Farrelly, 221 AD2d 321 [1995], quoting Holzer v Robbins, 141 AD2d 505, 506 [1988]). Since plaintiff cannot prevail "according to the rules and principles of substantive law" (CCA 1807), the small claims action must be dismissed.

We note that even were a proper basis to impose liability upon defendant discernable in the record, the court's (unexplained) damage award, in an amount twice that paid by plaintiff for defendant's commission, finds no record support.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 21, 2013