| Zere Real Estate Servs., Inc. v Adamag Realty Corp. |
| 2009 NY Slip Op 01796 [60 AD3d 758] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Zere Real Estate Services, Inc., Appellant, v AdamagRealty Corp. et al., Respondents. |
—[*1] Raymond A. Giusto, P.C., East Islip, N.Y., for respondents.
In an action, inter alia, to recover a real estate broker's commission, the plaintiff appealsfrom a judgment of the Supreme Court, Suffolk County (Mayer, J.), dated August 23, 2007,which, upon a jury verdict, and upon the denial of its motion pursuant to CPLR 4404 (a) to setaside the jury verdict as contrary to the weight of the evidence and for a new trial or, in thealternative, for judgment as a matter of law, is in favor of the defendants and against itdismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff, a commercial real estate agency, commenced this action, among other things,to recover a real estate brokerage commission from the defendants. After trial, the jury found thatthe plaintiff and the defendants had not entered into either an express or an implied contract. Theplaintiff moved pursuant to CPLR 4404 (a) to set aside the jury verdict as contrary to the weightof the evidence and for a new trial or, in the alternative, for judgment as a matter of law, and theSupreme Court denied the motion. We affirm.
The plaintiff failed to preserve for appellate review its challenge to the legal sufficiency ofthe evidence, since it failed to move pursuant to CPLR 4401 for judgment as a matter of law atthe close of the evidence (see Miller v Miller, 68 NY2d 871, 873 [1986]).
The jury's finding that the parties did not enter into an express brokerage agreement was not[*2]contrary to the weight of the evidence. A verdict may be setaside as contrary to the weight of the evidence and a new trial ordered if the evidence "sopreponderate[d] in favor of the [plaintiff] that [the verdict] could not have been reached on anyfair interpretation of the evidence" (Grassi v Ulrich, 87 NY2d 954, 956 [1996]; seeLolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Rivera v 4064 Realty Co., 17 AD3d 201, 203 [2005]; Nicastrov Park, 113 AD2d 129, 133-134 [1985]). In determining whether to set aside the verdict ascontrary to the weight of the evidence, deference must be accorded to the jury's assessment ofthe witnesses' credibility (see MirancoContr., Inc. v Perel, 57 AD3d 956 [2008]).
Here, the plaintiff contends that the jury's finding that the parties did not enter into anexpress or implied contract was contrary to the weight of the evidence. In an action to recover areal estate brokerage commission, the broker must establish: "(1) that he or she is duly licensed,(2) that he or she had a contract, express or implied, with the party to be charged with paying thecommission, and (3) that he or she was the procuring cause of the sale" (Friedland Realty vPiazza, 273 AD2d 351, 351 [2000]; see Ormond Park Realty v Round Hill Dev.Corp., 266 AD2d 523, 524 [1999]; Buck v Cimino, 243 AD2d 681, 684 [1997]).
At trial, Marie Zere, the principal owner of the plaintiff, testified that the parties agreed onlythat the commission for a completed sale would be "no more than 5 percent." Zere testified thatshe understood the agreement to mean that the defendant Adamag agreed to pay a 5%commission. However, the defendant Michael Adamowicz, a principal of the defendant AdamagRealty Corp. (hereinafter Adamag Realty), testified that he understood that if a deal wascompleted, the parties would then negotiate a commission rate of no more than 5%, dependingon the particulars of the deal. It was undisputed that any agreement was nonexclusive and thatthere was no agreed-upon duration of any such agreement. Under these circumstances, the jurycould have found upon a fair interpretation of the evidence that the parties merely reached an"agreement to agree" and did not enter into an express contract for brokerage services, and itsfinding that no such contract was entered into was therefore not contrary to the weight of theevidence (see Parkway Group v Modell's Sporting Goods, 254 AD2d 338 [1998]; seealso Ormond Park Realty v Round Hill Dev. Corp., 266 AD2d at 523; Cooper Sq. Realtyv A.R.S. Mgt., 181 AD2d 551, 552 [1992]).
Further, contrary to the plaintiff's contention, defense counsel's summation comments did notconstitute admissions of fact under the circumstances of this case (see Wheeler v Citizens Telecom. Co. ofN.Y., Inc., 18 AD3d 1002 [2005]; see also Rahman v Smith, 40 AD3d 613, 615 [2007]) and, in anyevent, counsel's summation comments did not establish that the jury's finding was against theweight of the evidence (see Parkway Group v Modell's Sporting Goods, 254 AD2d at338; see also Ormond Park Realty v Round Hill Dev. Corp., 266 AD2d at 523;Cooper Sq. Realty v A.R.S. Mgt., 181 AD2d at 552).
The jury's finding that the parties' conduct did not give rise to an implied contract was notcontrary to the weight of the evidence. A seller may be "liable for a broker's commission under atheory of a broker's implied employment where, even in the absence of the owner's expressagreement to pay the broker's commission, the owner accepted and benefitted from the broker'sservices" (Joseph P. Day Realty Corp. v Chera, 308 AD2d 148, 153 [2003]; seeFriedland Realty v Piazza, 273 AD2d 351 [2000]). Here, the plaintiff contends that theevidence that Zere contacted potential buyers, marketed the property, and participated innegotiations for a proposed sale established that the defendants appropriated its services.However, those efforts were made in furtherance of a proposed sale of the property to aprospective buyer, Structural Technologies, a transaction which did not occur. Rather, thedefendants Michael Adamowicz and Elizabeth Fraser, the owners of Adamag [*3]Realty along with their mother, transferred the property to thedefendant Sayville Development Group, LLC, in order to purchase their mother's interest in theproperty. Sayville Development Group, LLC, then developed the property. It was undisputedthat the plaintiff had no involvement in the transaction that resulted in the formation of SayvilleDevelopment Group, LLC, or the development of the property by that entity.
The plaintiff also contends that the evidence showed that Zere accomplished the transactionthat ultimately occurred, since there was evidence that she had introduced a prospectivepurchaser in connection with the proposed Structural Technologies purchase. Further,Adamowicz and Fraser subsequently gave Aniboli a 25% interest in Sayville DevelopmentGroup, LLC. Thus, the plaintiff contends, the defendants consciously appropriated its services inconnection with the formation of Sayville Development Group, LLC. However, although Zeretestified that she had informed the defendants that Aniboli also was a prospective investor in theStructural Technologies group, she produced no written documentation to that effect, and thewritten proposals and draft contracts do not indicate the specific identity of the purchasers, nordo those documents indicate that Aniboli was involved as a purchaser in addition to his role asan attorney. Further, Aniboli's involvement with the Structural Technologies purchase by, interalia, drafting a proposed contract of sale, is consistent with his acting only as an attorney.Moreover, although the defendant Michael Adamowicz testified that he later became aware thatAniboli had been a potential investor in the Structural Technologies group, he did not becomeaware of that fact until Aniboli made it clear that he was no longer interested in becoming part ofthat group. In sum, under these circumstances the jury's finding that the defendants did notconsciously appropriate the plaintiff's services and that the parties' conduct did not create animplied contract was not contrary to the weight of the evidence (see Joseph P. Day RealtyCorp. v Chera, 308 AD2d at 153-154; see also Friedland Realty v Piazza, 273 AD2dat 351-352). Fisher, J.P., Miller, Carni and Balkin, JJ., concur.