| CB Richard Ellis, Buffalo, LLC v D.R. Watson Holdings,LLC |
| 2009 NY Slip Op 02184 [60 AD3d 1409] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| CB Richard Ellis, Buffalo, LLC, Respondent, v D.R. WatsonHoldings, LLC, Appellant. |
—[*1] Lewandowski & Associates, West Seneca (Brian N. Lewandowski of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), enteredDecember 7, 2007. The order, insofar as appealed from, granted in part the motion of plaintifffor summary judgment and awarded plaintiff a certain sum for leasing commissions.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking leasing and sales commissionspursuant to a listing contract extension granting it the exclusive right to sell or lease defendant'sproperty. Supreme Court properly granted that part of plaintiff's motion for summary judgmentseeking leasing commissions and awarding plaintiff the sum of $41,000 plus interest. We note atthe outset that defendant's sole contention on appeal is that the court erred in granting that part ofthe motion because defendant raised a triable issue of fact whether an accord and satisfactionoccurred with respect to the leasing commissions. We therefore cannot agree with the dissentthat this Court should address the issue of plaintiff's entitlement to those commissions. It is wellsettled that "parties to a civil dispute are free to chart their own litigation course" (Mitchell vNew York Hosp., 61 NY2d 208, 214 [1984]) and "may fashion the basis upon which aparticular controversy will be resolved" (Cullen v Naples, 31 NY2d 818, 820 [1972]).Thus, we see no reason to reach the issue raised sua sponte by the dissent.
We reject defendant's contention with respect to the defense of accord and satisfaction. Aparty seeking to establish that an accord and satisfaction occurred must demonstrate that thedisputed claim was "mutually resolved through a new contract 'discharging all or part of the[ ]obligations under the original contract' " (Conboy, McKay, Bachman & Kendall vArmstrong, 110 AD2d 1042, 1042 [1985]; see Pothos v Arverne Houses, 269 AD2d377, 378 [2000]). Here, defendant relies solely on an alleged oral agreement between the parties'officers and failed to submit evidence sufficient to raise a triable issue of fact whether a paymentof approximately $8,000 to plaintiff constituted an accord and satisfaction.
The sole issue on appeal, according to defendant's brief, is whether there are "genuine [*2]issues of material fact . . . with respect to the defenseof accord and satisfaction." Thus, contrary to the position taken by the dissent, the question ofplaintiff's entitlement to a commission was never disputed by defendant, and thus the entitlementissue is not before us.
All concur except Smith and Peradotto, JJ., who dissent and vote to reverse the order insofaras appealed from in accordance with the following memorandum.
Smith and Peradotto, JJ. (dissenting). We respectfully dissent because we conclude thatplaintiff failed to meet its initial burden on that part of its motion for summary judgment seekingleasing commissions. We agree with the majority that plaintiff sought commissions for propertyleases pursuant to a listing contract extension (contract), but we cannot agree with its implicitconclusion that plaintiff established its entitlement to commissions under that contract. Thecontract provides that plaintiff shall be entitled to certain commissions "in case said property orany part thereof is leased before the expiration of the" contract, i.e., February 16, 2001, and thelease agreement for which plaintiff sought commissions is dated April 10, 2001. Although thecontract contains several provisions permitting plaintiff to recover commissions for sales orleases occurring outside the term of the contract under certain circumstances, plaintiff failed tosubmit evidence in support of its motion establishing that any of those circumstances exist.Because plaintiff failed to meet its initial burden on that part of the motion with respect toleasing commissions (see Barrister Referrals v Windels, Marx, Davies & Ives, 169 AD2d622 [1991]; see generally Ritta Personnel v Andrew F. Capoccia, P. C., 144 AD2d 196,197-198 [1988]), we conclude that Supreme Court erred in granting that part of the motion. Inview of our decision, we do not address the sufficiency of defendant's opposing papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). We therefore would reverse the order insofar as appealedfrom, deny plaintiff's motion in its entirety and vacate the sum awarded for leasing commissions.Present—Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.