| Thomas A. Sbarra Real Estate, Inc. v Lavelle-Tomko |
| 2011 NY Slip Op 03952 [84 AD3d 1570] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Thomas A. Sbarra Real Estate, Inc., Doing Business as Century 21Sbarra & Wells, et al., Respondents, v Kathleen A. Lavelle-Tomko,Appellant. |
—[*1] Pope & Schrader, Binghamton (Alan J. Pope of counsel), for respondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Lebous, J.), entered September 9,2010 in Broome County, which denied defendant's motion to dismiss the complaint.
In 2007, plaintiffs and defendant, a former employee of plaintiff Thomas A. Sbarra RealEstate, Inc., entered into a settlement agreement by which, among other things, plaintiffs agreedto discontinue a lawsuit against defendant, and defendant agreed to surrender her real estatebroker license and cease acting as a real estate agent. Approximately three years later, plaintiffscommenced this action, alleging that defendant had breached the terms of the settlementagreement by, among other things, obtaining a broker license and acting as a real estate agent.Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1). Supreme Courtdenied the motion and defendant appeals.
"A CPLR 3211 (a) (1) motion 'may be appropriately granted only where the documentaryevidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense asa matter of law' " (Jesmer v RetailMagic, Inc., 55 AD3d 171, 180 [2008], quoting Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; seeBerardino v Ochlan, 2 AD3d 556, 557 [2003]). Here, in support of her motion,defendant presented the [*2]parties' settlement agreement andaverred that she had complied with every term contained therein, including the requirement thatshe "surrender her real estate [broker] license and otherwise cease acting as a real estate agent orbroker by September 1, 2007." According to defendant, there is nothing in the agreement thatprohibits her from regaining her broker license or reentering the work force as a real estate agentor broker. Plaintiffs aver that the absence of a sunset clause in the agreement indicates thatdefendant was required to permanently surrender her license and permanently cease working as areal estate agent. The parties' conflicting interpretations of the settlement agreement presentissues requiring further development. As the proffered documentary evidence does not "resolve[ ]all factual issues as a matter of law, and conclusively dispose[ ] of the plaintiff[s'] claim"(Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]), defendant'smotion to dismiss the complaint was properly denied.
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,with costs.