| Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC |
| 2011 NY Slip Op 00158 [80 AD3d 476] |
| January 13, 2011 |
| Appellate Division, First Department |
| Newmark & Company Real Estate Inc., Appellant, v 2615 East17 Street Realty LLC, Respondent, and Wilk Real Estate I, LLC, et al.,Intervenors-Respondents. |
—[*1] Sol Mermelstein, Brooklyn, for 2615 East 17 Street Realty LLC, respondent. Arnold J. Ludwig, Brooklyn, for Wilk Real Estate I, LLC and Albert Wilk, respondents.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 16, 2010, which,insofar as appealed from, in this action alleging a breach of contract, denied plaintiff's motion forsummary judgment, unanimously reversed, on the law, with costs, and the motion granted in theprincipal amount of $124,415, plus interest from June 25, 2009. The Clerk is directed to enterjudgment accordingly. Appeal from order, same court and Justice, entered April 15, 2010, whichgranted the motion of Wilk Real Estate I, LLC and Albert Wilk to intervene, unanimously dismissed,without costs, as academic.
In the lease between defendant, as the landlord, and nonparty tenant, which was brought into thetransaction by plaintiff broker, the subscribing parties represented that plaintiff was the exclusive brokerfor the transaction and that defendant would pay its commission. This clear representation, which wassupported by additional documentary evidence, entitled plaintiff to its commission as a matter of law(Morris Cohon & Co. v Russell, 23 NY2d 569, 574-575 [1969]; Helmsley-Spear, Inc. vNew York Blood Ctr., 257 AD2d 64 [1999]). We reject defendant's claim that the relevantprovision does not mean what it says, but resulted from a scrivener's error (see Edward S. GordonCo. v Blodnick, Schultz & Abramowitz, 150 AD2d 212 [1989], lv denied 74 NY2d 613[1989]).
Although defendant did not sign the separate brokerage agreement proffered by plaintiff settingforth the details of its commission, that fact is not fatal either under the statute of frauds or as toenforceability. Several e-mail communications, supported by other documentary evidence, reflectedthat plaintiff and defendant were in regular contact negotiating the lease and, when the parties appearedclose to agreeing to the lease terms, plaintiff e-mailed defendant a draft brokerage agreement, settingforth, inter alia, the particular commission that had been discussed. Plaintiff invited defendant's revisionsand defendant sent back, also by e-mail, [*2]handwritten revisions,which did not modify the commission, but only provided that it would be paid in specified increments.Plaintiff incorporated those revisions and sent the final copy back to defendant's agent, and the recordcontains no evidence that defendant objected to, protested, or rejected any of the provisions in the lastversion of the agreement.
An e-mail sent by a party, under which the sending party's name is typed, can constitute a writingfor purposes of the statute of frauds (see General Obligations Law § 5-701 [b] [4]; Stevens v Publicis S.A., 50 AD3d253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). Defendant does not disputeits authorship of the e-mails, nor that they were sent by its agent, and contrary to defendant's claims,there is no evidence that it rejected the final e-mail sent by plaintiff, which incorporated defendant'srevisions. The e-mail agreement set forth all relevant terms of the agreement, including the particularcommission charged by plaintiff, and thus, constituted a meeting of the minds (cf. Naldi v Grunberg, 80 AD3d 1,13-14 [2010]).
In view of the foregoing, plaintiff's challenges to the order granting the motion to intervene areacademic. Concur—Tom, J.P., Sweeny, Freedman, Richter and Abdus-Salaam, JJ.