| Howard Carr Cos., Inc. v Tech Val. Plaza, LLC |
| 2010 NY Slip Op 04905 [74 AD3d 1534] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The Howard Carr Companies, Inc., Doing Business as The HowardGroup, Respondent, v Tech Valley Plaza, LLC, Appellant. |
—[*1] Law Office of Murray S. Carr, Albany (Murray S. Carr of counsel), for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (McNamara, J.), entered April 27,2009 in Albany County, which, among other things, granted plaintiff's cross motion for summaryjudgment.
In August 2006, defendant retained plaintiff, a real estate brokerage firm, to market, for saleor lease, a 27-acre parcel of real property in Rensselaer County. The exclusive listing agreementsigned by both parties identified defendant as the owner of the property and provided forplaintiff to be paid—by the owner—a commission of 5% of the sale price if theproperty was sold or a fee of $4 per square foot if the property was leased. Although notdisclosed in the agreement, defendant was, in fact, not the owner of the property, but was merelythe holder of a written option to purchase the property. Thereafter, plaintiff marketed theproperty resulting in an offer from BT Greenbush, LLC to purchase the property for $5,500,000.In October 2007, this transaction successfully closed and the buyer paid $5,500,000 to obtain theproperty with $3,552,810 being paid to defendant for its interest and $1,947,190 being paid tothe actual owners. Contending that it only owed plaintiff a commission on the money it received,[*2]defendant paid plaintiff $108,000.[FN*]Plaintiff commenced this action against defendant, contending that it was owed a commissionbased on $5,500,000, the full sale price of the property.
After joinder of issue, defendant moved for summary judgment seeking dismissal of thecomplaint. Plaintiff cross-moved for summary judgment. Supreme Court granted plaintiff's crossmotion finding that, based on the unambiguous terms of the agreement, plaintiff was entitled toan additional $167,000 commission, representing 5% of the full sale price of the property.Defendant now appeals and we affirm.
"[A] written agreement that is complete, clear and unambiguous on its face must be enforcedaccording to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d562, 569 [2002]; see ScienceApplications Intl. Corp. v State of New York, 60 AD3d 1257, 1258 [2009]). "Extrinsicevidence of the parties' intent may be considered only if the agreement is ambiguous, which is anissue of law for the courts to decide" (Greenfield v Philles Records, 98 NY2d at 569[citation omitted]). "[I]f the agreement on its face is reasonably susceptible of only one meaning,a court is not free to alter the contract to reflect its personal notions of fairness and equity"(id. at 569-570; see White vContinental Cas. Co., 9 NY3d 264, 267 [2007]).
Here, the terms of the agreement are clear and unambiguous and, as such, the meaning of thecontract will be determined from the language employed without consulting extrinsic evidence(see Parnes v Parnes, 41 AD3d934, 936 [2007]). We are unpersuaded by defendant's argument that there is any ambiguityin the term "property," so as to render the agreement unclear as to whether plaintiff's commissionwas to be based on the full sale price or only those funds flowing to defendant under anallocation of the purchase price devised between defendant and the actual owner. Defendant'sclaim that it only owes plaintiff a commission on its allocation of the purchase price is belied bythe fact that defendant held itself out in the agreement as the owner of the property, which wasthen immediately described as being "250,000 SF to be built as a shopping center." Theagreement clearly set forth that, in return for finding a purchaser or a tenant, defendant wouldpay plaintiff a 5% commission on the sale price if the property sold or a fee of $4 per square footif it were leased. The simple fact is that plaintiff procured a willing buyer who, in fact, paid$5,500,000 to purchase the property. As defendant failed to rebut plaintiff's prima facieentitlement to a commission based upon the full sale price of the property (see Robert Cohn Assoc., Inc. vKosich, 63 AD3d 1388, 1389 [2009]), Supreme Court properly granted plaintiffsummary judgment.[*3]
Defendant's remaining argument, seeking reformation ofthe agreement, is not preserved for our review (see Herron v Essex Ins. Co., 34 AD3d 913, 914 [2006], lvdismissed 8 NY3d 856 [2007]).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Defendant claims that it actuallyoverpaid plaintiff. While 5% of $3,552,810 would indicate a commission due of approximately$177,641, under a further broker cooperation agreement entered into between plaintiff and theNigro Group, plaintiff agreed that when it received its commission, it would in turn pay to theNigro Group a 2% commission, thus resulting, according to defendant, in a commission due toplaintiff of $106,584. The broker cooperation agreement was signed on behalf of the NigroGroup by Frank J. Nigro III, who was also the individual who signed the listing agreement onbehalf of defendant.