| Robert Cohn Assoc., Inc. v Kosich |
| 2009 NY Slip Op 05042 [63 AD3d 1388] |
| June 18, 2009 |
| Appellate Division, Third Department |
| Robert Cohn Associates, Inc., Doing Business as CB RichardEllis-Albany, Respondent, v Martin Kosich et al., Appellants. |
—[*1] Ganz, Wolkenbreit & Friedman, Albany (Robert E. Ganz of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Platkin, J.), entered April 11,2008 in Albany County, which granted plaintiff's motion for summary judgment.
By a written agreement dated April 17, 2006, plaintiff and defendant Martin Kosich, as theowner of defendant 855 Central Ave., LLC, agreed that plaintiff would act as the exclusive realestate broker with respect to the sale or lease of a multi-tenant commercial building located at845, 855 and 875 Central Avenue in the City of Albany, known as defendant West Mall OfficeCenter, LLC.[FN1] The agreement provided that plaintiff would serve as the exclusive broker for the property for aone-year period and that if the property were leased or sold during that period, plaintiff wouldreceive a commission. In accordance with its obligations under the contract, plaintiff produced anet operating income statement based upon the existing tenants' rent rolls for the purposes ofmarketing the property. It also prepared and published marketing materials, listed the propertyfor sale and lease in real estate databases and showed the property to [*2]prospective purchasers.[FN2]
In September 2006, defendants informed plaintiff, by letter through their counsel, that thecontract was "hereby cancelled immediately." Three months later, defendants entered into acontract to sell the property for $5,250,000 to a purchaser procured by another licensed realestate broker, Charles Carrow. Upon the closing of that sale, Carrow received a real estatecommission as a result of the sale of the property. Plaintiff commenced this action to recover thecommission it claims it is owed under the exclusive listing agreement it had with defendants.After defendants served an answer to the complaint, plaintiff moved for summary judgment.Supreme Court granted plaintiff's motion, and awarded plaintiff a judgment in the amount of$118,125—2.25% of the purchase price[FN3] —as well as interest and counsel fees, as provided for in the contract. Defendants nowappeal.
We affirm. The listing agreement as signed by both Jonathan Eklind, on behalf of plaintiff,and Kosich expressly provides that plaintiff was the exclusive listing agent for the property for aone-year period beginning on April 17, 2006 and set forth the rate of the commission thatplaintiff would receive upon the sale of the property (see generally Joseph P. Day RealtyCorp. v Chera, 308 AD2d 148, 150 [2003]). A contract for sale of the property was executedduring the listing period and the property was, in fact, sold pursuant to that contract. Therefore,plaintiff established its prima facie entitlement to a commission based upon the price paid for theproperty under the exclusive listing agreement it had with defendants (see Century 21 A.L.P.Realty v Doller, 170 AD2d 941, 942 [1991]; see generally Heritage Springs Sewer Works, Inc. v Boghosian, 61AD3d 1038, 1040-1041 [2009]).
In response, defendants have failed to raise any triable issue of fact that would warrantdenial of plaintiff's motion for summary judgment (see CPLR 3212 [b]; Zuckerman vCity of New York, 49 NY2d 557 [1980]; Heritage Springs Sewer Works, Inc. vBoghosian, 61 AD3d at 1040-1041). For example, defendants claim that they had the rightto unilaterally terminate the contract as a result of plaintiff's material breach of its contractualobligations and, therefore, plaintiff was not entitled to a commission as a result of the sale of theproperty. However, a "party's obligation to perform under a contract is only excused where theother party's breach of the contract is so substantial that it defeats the object of the parties inmaking the contract" (Frank Felix Assoc., Ltd. v Austin Drugs, Inc., 111 F3d 284, 289[1997]). In support of their assertion that plaintiff was in material breach of its obligations underthe contract, defendants claim that plaintiff did not sufficiently advertise and market theproperty, it made significant errors in the data provided to the multiple listing service describingthe property, and it refused to communicate with defendants other than by certified mail duringthe contract period. Even if [*3]true, none of these claims wouldconstitute conduct that would serve to defeat the very purpose of the parties entering into thecontractual arrangement, or would "justify defendants' premature termination" of the contract(M.J. Raynes Inc. v Pepitone Realty Corp., 152 AD2d 492, 493 [1989]; see CassettaFrank, Inc. v P.G.C. Assoc., 264 AD2d 375, 376-377 [1999]; compare Dierkes Transp. vGermantown Cent. School Dist., 295 AD2d 683, 684 [2002]).
We also note that, in response to defendants' complaints about its performance under thecontract, plaintiff produced testimony wherein Kosich acknowledged communicating withplaintiff by telephone regarding the sale of the property and specifically denied ever beinginformed by plaintiff or its authorized representative that plaintiff would only communicate withdefendants by certified mail. Further, the errors that defendants claim existed in the descriptionsgiven by plaintiff of the property to the multiple listing database were corrected by plaintiff soonafter they were discovered and, more importantly, the record reveals that plaintiff, contrary todefendants' contention, did make an earnest effort to market the property showing it to a numberof perspective buyers during the listing period. While defendants were undoubtedly not satisfiedwith plaintiff's efforts as their listing broker, the allegations regarding plaintiff's failure to honorits obligations under their agreement, even if accepted at face value, would not constitute amaterial breach of its obligations under the contract. As a result, on the facts presented,defendants were not entitled to unilaterally terminate their contractual arrangement with plaintiffand they have failed to establish the existence of a triable issue of fact that would require a denialof plaintiff's motion for summary judgment. Therefore, Supreme Court's order granting plaintiff'smotion should be affirmed.
Defendants' remaining contentions have been reviewed and found to be lacking in merit.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: The titled owner of West MallOffice Center, LLC is 855 Central Ave., LLC.
Footnote 2: Plaintiff procured at least oneoffer to purchase the property, which was rejected by defendants.
Footnote 3: The contract provided forplaintiff to be paid a 4% commission unless another broker was involved in the purchase, inwhich case plaintiff would receive 2.25% commission, and the other broker would be paid a1.75% commission. Given Carrow's involvement, plaintiff does not argue that it was entitled tothe full 4% commission on the sale of the property and, therefore, only 2.25% was awarded bySupreme Court.