| Exit Empire Realty v Zilelian |
| 2016 NY Slip Op 01461 [137 AD3d 742] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| Exit Empire Realty, Also Known as CS Empire Realty,LLC, Appellant, v Madeline Zilelian, Defendant. |
Stephen David Fink, Forest Hills, NY, for appellant.
In an action to recover a real estate brokerage commission, the plaintiff appeals from(1) an order of the Supreme Court, Queens County (Strauss, J.), dated December 1, 2014,which denied its unopposed motion for summary judgment on the complaint and, ineffect, searched the record and awarded summary judgment to the defendant dismissingthe complaint, and (2) an order of the same court (Raffaele, J.), dated April 10, 2015,which denied its unopposed motion for leave to reargue its prior motion for summaryjudgment on the complaint.
Ordered that the appeal from the order dated April 10, 2015, is dismissed, withoutcosts or disbursements, as no appeal lies from an order denying leave to reargue; and it isfurther,
Ordered that the order dated December 1, 2014, is modified, on the law, by deletingthe provision thereof which, in effect, searched the record and awarded summaryjudgment to the defendant dismissing the complaint; as so modified, the order datedDecember 1, 2014, is affirmed, without costs or disbursements.
The plaintiff commenced this action to recover a real estate brokerage commission.The plaintiff subsequently moved for summary judgment on the complaint. Noopposition to the motion was filed. The Supreme Court denied the motion and, in effect,searched the record and awarded summary judgment to the defendant dismissing thecomplaint. The plaintiff appeals.
The plaintiff failed to meet its prima facie burden of establishing its entitlement tojudgment as a matter of law. The exclusive listing agreement between the plaintiff andthe defendant was in effect for a six-month period, from July 28, 2012 through midnighton January 28, 2013, and the plaintiff failed to present any competent evidence toestablish that the subject property was sold during that six-month period (cf. 6 HunterDr. v Stechler, 269 AD2d 382 [2000]). The Supreme Court therefore properly deniedthe plaintiff's unopposed motion for summary judgment on the complaint (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
However, since there are triable issues of fact on this record, including whether thesubject property was sold during the six-month period that the exclusive listingagreement was in effect, the Supreme Court improperly, in effect, searched the recordand awarded summary judgment to the defendant dismissing the complaint (seeCPLR 3212 [b]). Dickerson, J.P., Hall, Roman and Duffy, JJ., concur.