| Dysal, Inc. v Hub Props. Trust |
| 2012 NY Slip Op 01424 [92 AD3d 826] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Dysal, Inc., Doing Business as Corporate Realty Consultants,Respondent, v Hub Properties Trust et al., Appellants. |
—[*1] Germano & Cahill, P.C., Holbrook, N.Y. (Marie E. Knapp of counsel), forrespondent.
In an action, inter alia, to recover a real estate broker's commission, the defendants appealfrom an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated September 22, 2011,which denied their motion for summary judgment dismissing the complaint, granted theplaintiff's cross motion, in effect, for summary judgment on the issue of liability as against thedefendant Hub Properties Trust, and set the matter down for a hearing to determine the amount ofthe commission due.
Ordered that the order is affirmed, with costs.
" 'The fundamental, neutral precept of contract interpretation is that agreements are construedin accord with the parties' intent' " (Willsey v Gjuraj, 65 AD3d 1228, 1229-1230 [2009], quoting Franklin Apt. Assoc., Inc. v WestbrookTenants Corp., 43 AD3d 860, 861 [2007] [some internal quotation marks omitted];see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). " 'When the terms of awritten contract are clear and unambiguous, the intent of the parties must be found within thefour corners of the contract, giving practical interpretation to the language employed and theparties' reasonable expectations' " (Willsey v Gjuraj, 65 AD3d at 1230, quotingFranklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d at 861; seeGreenfield v Philles Records, 98 NY2d at 569; Correnti v Allstate Props., LLC, 38 AD3d 588, 590 [2007]). "'Thus, a written agreement that is complete, clear and unambiguous on its face must be enforcedaccording to the plain meaning of its terms' " (Willsey v Gjuraj, 65 AD3d at 1230,quoting Greenfield v Philles Records, 98 NY2d at 569; see W.W.W. Assoc. vGiancontieri, 77 NY2d 157, 162 [1990]). " '[C]ourts may not by construction add or exciseterms, nor distort the meaning of those used and thereby make a new contract for the partiesunder the guise of interpreting the writing' " (Willsey v Gjuraj, 65 AD3d at 1230, quotingHenrich v Phazar Antenna Corp., 33AD3d 864, 867 [2006] [some internal quotation marks omitted]; see Vermont Teddy Bear Co. v 538Madison Realty Co., 1 NY3d 470, 475 [2004]). "Therefore, a court 'will not imply aterm where the circumstances surrounding the formation of the contract indicate that the parties,when the contract was made, must have foreseen the contingency at issue and the agreement canbe enforced according to its terms' " (Willsey v Gjuraj, 65 AD3d at 1230, quotingHenrich v Phazar [*2]Antenna Corp., 33 AD3d at 867 [someinternal quotation marks omitted]; see Reiss v Financial Performance Corp., 97 NY2d195, 199 [2001]).
Here, the Supreme Court correctly concluded that, pursuant to the express terms of, amongother things, an agreement for the assignment and assumption of leases entered into between thedefendant Hub Properties Trust (hereinafter Hub) and its predecessor in interest, Perinton, LLC(hereinafter Perinton), in connection with Hub's purchase of certain real property from Perinton,and a commission agreement entered into between Perinton and the plaintiff, Hub assumed theobligation to pay the plaintiff's commission upon the happening of the "Lease Event." The "LeaseEvent" occurred when the tenant remained in possession of the subject leased premises beyondthe termination date set forth in the first amendment to the subject lease. Contrary to thedefendants' contention, pursuant to the agreement for the assignment and assumption of leasesand the commission agreement, Hub affirmatively assumed the obligation to pay the plaintiff itscommission (cf. Longley-Jones Assoc. v Ircon Realty Co., 67 NY2d 346 [1986]).Accordingly, the Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint, granted the plaintiff's cross motion, in effect, for summary judgmenton the issue of liability as against Hub, and set the matter down for a hearing to determine theamount of the commission due.
In light of our determination, we need not reach the parties' remaining contentions. Balkin,J.P., Dickerson, Belen and Cohen, JJ., concur.