| Parker Realty Group, Inc. v Petigny |
| 2009 NY Slip Op 09389 [68 AD3d 571] |
| December 17, 2009 |
| Appellate Division, First Department |
| Parker Realty Group, Inc., Respondent, v A. MichellePetigny, Appellant, et al., Defendants. |
—[*1] Kip Lenoir, New York, for respondent.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered December 11,2008, after a nonjury trial, awarding plaintiff the sum of $83,350.75, consisting of individualawards of $5,880, $500 and $60,000, plus interest on each, and costs and disbursements,modified, on the law, to vacate the individual awards of $5,880 and $60,000 and the interest oneach, thereby reducing the total award to $500 plus interest, costs and disbursements, andotherwise affirmed, without costs. The Clerk is directed to enter an amended judgmentaccordingly.
Pursuant to an exclusive broker's agreement between plaintiff real estate broker anddefendant A. Michelle Petigny, plaintiff arranged for the sale of property owned by Petigny at970 Eastern Parkway in Brooklyn to ADDA Management, LLC. The broker's agreementprovided that the commission was due and payable at the closing and transfer of title and that"[i]n the event[ ] title does not pass due to the Owner's willful default, commission shall still bedeemed earned by [plaintiff]." After ADDA failed to close, Petigny entered into a contract withdefendant 970 Management LLC. Under the plain language of the brokerage agreement, sincethe fact that title did not pass to ADDA was not due to Petigny's willful default, plaintiff was notentitled to its $5,880 commission on the ADDA transaction (see Greenfield v PhillesRecords, 98 NY2d 562, 569 [2002]). Contrary to plaintiff's argument, the parties did notorally modify the agreement to provide for the payment of commission in the event of a buyer'sdefault, since at least one of the material provisions of the contemplated modification remainedin dispute (see Willmott v Giarraputo, 5 NY2d 250, 253 [1959]). Plaintiff's June 17,2005 e-mail to Petigny states, "[A]lthough we have discussed and agreed upon my companyreceiving a fee for the prior work with [the ADDA] deal, I have yet to hear back from youregarding an agreed payment amount." Nor is plaintiff entitled to recover under the theory ofquantum meruit, since the valid and enforceable written broker's agreement "cover[s] the disputein issue," i.e., plaintiff's entitlement to payment (see Joseph Sternberg, Inc. v Walber 36th St.Assoc., 187 AD2d 225, 227-228 [1993]). However, it is undisputed that plaintiff, by itspresident, Kim Parker, appeared [*2]in court, at Petigny's requestand with the promise of $500 for the appearance, to testify in connection with Petigny's suitagainst ADDA.
With respect to plaintiff's $60,000 commission on the sale of the property to 970Management LLC, plaintiff failed to establish that the parties orally modified their exclusivebroker's agreement to extend its term. Kim Parker testified that after she talked to Petigny andreceived an e-mail saying that Petigny's property manager was aware that Parker would continueto serve as the broker for the property, she continued to show the property and thereforeremained "employed" by Petigny (see Julien J. Studley, Inc. v New York News, 70NY2d 628 [1987]). However, Parker also testified that Petigny never signed the writtenagreement memorializing the new terms and that Petigny had negotiated a separate agreementwith another broker. Thus, Petigny's representations cannot be construed as unambiguouslycreating in plaintiff the exclusive right to sell the property (see Far Realty Assoc. Inc. v RKO Del. Corp., 34 AD3d 261[2006]). Concur—Tom, J.P., Friedman and Richter, JJ.
Nardelli and Buckley, JJ., dissent in part in a memorandum by Nardelli, J., as follows: Idisagree with the majority's determination to vacate the award of $5,880 by the trial court inconjunction with the ADDA transaction, and would affirm that portion of the judgment.
It is axiomatic that after a bench trial, "the decision of the fact-finding court should not bedisturbed upon appeal unless it is obvious that the court's conclusions could not be reached underany fair interpretation of the evidence" (Claridge Gardens v Menotti, 160 AD2d 544,544-545 [1990]; see also 542 E. 14th St.LLC v Lee, 66 AD3d 18 [2009]). The trial court's award of $5,880 was rationally based,in that it constituted 6% of the amount of $98,000 being held in escrow with regard to the firsttransaction, in which the buyer, ADDA Management, defaulted. Defendant Petigny was awardedthat amount in a separate proceeding. It is undisputed that ADDA was introduced to Petigny byplaintiff, and that the $98,000 which Petigny was awarded emanated from that transaction.
Contrary to the majority's conclusion, it is evident that the brokerage agreement, whichprovided for the payment of a full commission on the purchase price only in the event that titletransferred, did not cover the situation presented here, where title did not transfer, but the sellernevertheless received a significant benefit, i.e., $98,000, because the broker introduced ADDA tothe seller. As this Court has stated, "where the contract does not cover the dispute in issue,plaintiff may proceed upon a theory of quantum meruit" (Joseph Sternberg, Inc. v Walber36th St. Assoc., 187 AD2d 225, 228 [1993]).
Implicit in the judgment awarded to plaintiff is that the court found that plaintiff performedservices in good faith, defendant accepted those services, and plaintiff is entitled tocompensation for the reasonable value of those services (see e.g. Curtis Props. Corp. v GreifCos., 212 AD2d 259, 266-267 [1995]). In other words, if plaintiff did not introduce ADDAto defendant, defendant would not be enriched by the $98,000 ADDA tendered when thecontract [*3]was executed. Such a finding by the trial court ishardly irrational, and the trial court's determination to deem plaintiff entitled to 6% of thatamount should not be disturbed.