Emerson J. Dobbs, Inc. v L & L Pirton, Inc.
Annotate this CaseDecided on July 27, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2014-823 S C
Emerson J. Dobbs, Inc., Appellant,
against
L & L Pirton, Inc., Respondent.
Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered October 29, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,237.
ORDERED that the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $7,481.07; as so modified, the judgment is affirmed, without costs.
Plaintiff, a licensed real estate broker, commenced this action to recover the $7,481.07 unpaid balance of a $9,974.76 commission for services it had allegedly rendered in connection with finding a tenant to lease commercial real estate premises owned by defendant.
After the District Court denied each party's motion for summary judgment, the matter proceeded to a nonjury trial. Plaintiff's agent, a licensed real estate broker, testified that he had entered into an oral brokerage commission agreement with defendant, whereby plaintiff would procure a tenant for defendant's commercial premises. The broker further testified that, during their initial conversation about procuring a tenant to lease the premises, he and defendant had orally agreed to plaintiff's standard commission fee agreement, which defendant had been familiar with through 30 years of dealings with plaintiff. Plaintiff's standard commission fee agreement, as plaintiff's agent testified and as demonstrated by plaintiff's submission of a prior commission fee agreement with defendant, provided that, although payable in intervals over the course of the lease term, plaintiff earned its commission upon the tenant signing a lease with defendant, taking possession of the premises, and conveying the security deposit and first month's rent to defendant. The initial term of the lease between defendant and the tenant procured by plaintiff, as amended on October 23, 2009, commenced on August 1, 2009 and terminated on July 31, 2014. In an email to plaintiff's agent dated June 19, 2009, defendant's agent stated that he had "understood [plaintiff's agent]" to have quoted a commission fee that differed from the terms of the standard agreement employed by plaintiff. In an email to plaintiff's agent dated October 24, 2009, defendant stated that it would "compromise with [plaintiff] on the agreement" by paying plaintiff's commissions "every six months [as set forth in plaintiff's standard commission fee agreement] providing that the tenant continues to pay rent." Plaintiff did not respond to the proposed compromise. Defendant presented no witnesses. Following the trial, the District Court found that the parties had agreed that defendant would pay plaintiff's commission only on rent actually received, and that, as defendant had paid $2,497 of the $3,732 which had been due plaintiff, defendant owed the balance of $1,237 to plaintiff.
Defendant contends on appeal that its motion for summary judgment should have been granted. In our view, review of this contention is barred by defendant's failure to cross-appeal from the judgment. While CPLR 5501 (a) (1) provides for review, upon an appeal from a final judgment, of any order that was adverse to the respondent on appeal, the intent of this provision was to protect a party who was barred, by the requirement that only an aggrieved party can appeal (see CPLR 5511), from appealing from the judgment (see Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539 [1983]; Weinstein-Korn-Miller, NY Civ Prac ¶ 5501.04 [2d ed 2004]). Here, however, defendant was aggrieved by the judgment and could have appealed therefrom but failed to do so, and plaintiff has appealed only on the limited ground of inadequacy. In these circumstances, the denial of defendant's summary judgment motion is not brought up for review. We note, in any event, that were the denial properly before us, we would not disturb it.
In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). In our opinion, the evidence adduced at trial established that defendant had orally agreed to plaintiff's standard commission fee agreement, with which defendant was familiar through its 30 years of business dealings with plaintiff. Consequently, the judgment in favor of plaintiff should be increased to the principal sum of $7,481.07.
The District Court's determination that prejudgment interest should be calculated from February 1, 2010 is correct, as that was the date on which defendant first missed a payment, which triggered the acceleration of all payments under the agreement (see CPLR 5001 [b]).
The judgment is modified accordingly.
Garguilo, J.P., Marano and Connolly, JJ., concur.
Decision Date: July 27, 2015
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