| Marciano v Ran Oil Co. E., LLC |
| 2009 NY Slip Op 05517 [63 AD3d 1118] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Rudolph P. Marciano, Doing Business as Marciano Realty,Appellant, v Ran Oil Company East, LLC, Respondent. |
—[*1] Daniels and Porco, LLP, Carmel, N.Y. (Robert C. Lusardi of counsel), forrespondent.
In an action to recover a real estate broker's commission, the plaintiff appeals from so muchof an order of the Supreme Court, Westchester County (Loehr, J.), entered May 21, 2008, as,upon searching the record, awarded summary judgment to the defendant dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs.
In this action to recover a real estate broker's commission with respect to the leasing ofcertain commercial property, the plaintiff moved for summary judgment on the complaint anddismissing the counterclaims and the defendant cross-moved for leave to amend its answer. TheSupreme Court denied that branch of the plaintiff's motion which was for summary judgment onthe complaint, denied the defendant's cross motion for leave to amend the answer, granted thosebranches of the plaintiff's motion which were for summary judgment dismissing the second,third, and fourth counterclaims, and, upon searching the record, awarded summary judgment tothe defendant dismissing the complaint.
The Supreme Court has the authority, pursuant to CPLR 3212 (b), to search the record andaward summary judgment to a nonmoving party with respect to an issue that was the subject ofthe motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430[1996]; Federal Natl. Mtge. Assn. v Katz, 33 AD3d 755, 756 [2006]; Murray vMurray, 28 AD3d 624 [2006]; Goldstein v County of Suffolk, 300 AD2d 441, 442[2002]). Contrary to the Supreme Court's conclusion, however, the record here does not establishthat the defendant is entitled to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
"A real estate broker is entitled to recover a commission upon establishing that he or she (1)is duly licensed, (2) had a contract, express or implied, with the party to be charged with payingthe commission, and (3) was the procuring cause of the sale" (Stanzoni Realty Corp. vLandmark Props. of Suffolk, Ltd., 19 AD3d 582, 583 [2005]; see Greene v Hellman,51 NY2d 197, 206 [1980]; Friedland Realty v Piazza, 273 AD2d 351 [2000]). There isno dispute that the plaintiff is a licensed broker or that he had a contract with the defendant. Theaffidavit of the defendant's principal demonstrates [*2]that theplaintiff introduced the defendant to the potential lessor and was involved in the transaction forseveral months while the attorneys for those parties attempted, unsuccessfully, to negotiate leaseterms. The transaction was resurrected six months later, however, when the potential lessoragreed to certain terms insisted upon by the defendant that were rejected in the earliernegotiations. Since the potential lessor returned to the negotiations on terms that had been part ofthe earlier negotiations and ultimately executed a lease, there is an issue of fact as to whether theplaintiff was the procuring cause of the transaction. Summary judgment in favor of thedefendant, therefore, should not have been awarded (see Hentze-Dor Real Estate, Inc. vD'Allessio, 40 AD3d 813 [2007]; Dagar Group v Hannaford Bros. Co., 295 AD2d554 [2002]).
The plaintiff's argument that the Supreme Court should have granted those branches of hismotion which were for summary judgment on the issue of liability on the first, second, and thirdcauses of action is not properly before us, as the plaintiff's notice of appeal limited the scope ofthe appeal to that part of the Supreme Court's order which searched the record and awardedsummary judgment in favor of the defendant dismissing the complaint (see CPLR 5515[1]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 23 [2009];Spencer v Crothall Healthcare, Inc., 38 AD3d 527, 528 [2007]; Yannotti v Four Bros.Homes at Heartland Condominium I, 24 AD3d 659, 660-661 [2005]). Spolzino, J.P., Dillon,Miller and Dickerson, JJ., concur.