Andover Retail Services Inc. v. Lincoln Metrocenter Partners, L.P.

Appellate Division of the Supreme Court of New York

Andover Retail Services Inc. v. Lincoln Metrocenter Partners, L.P.

279 A.D.2d 269, 719 N.Y.S.2d 15, 2001 N.Y. App. Div. LEXIS 30

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 4, 2001

StatusPublished

This text of 279 A.D.2d 269 (Andover Retail Services Inc. v. Lincoln Metrocenter Partners, L.P.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Andover Retail Services Inc. v. Lincoln Metrocenter Partners, L.P., 279 A.D.2d 269, 719 N.Y.S.2d 15, 2001 N.Y. App. Div. LEXIS 30 (N.Y. Ct. App. 2001).

Pincite

Opinion

Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about February 10, 2000, which denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff real estate brokers entered into a brokerage agreement with defendant pursuant to which defendant agreed to pay plaintiffs two percent of the base rent for the entire term of a fifteen-year lease between defendant and Record Town. Because there was a clause in the lease permitting Record Town to terminate the lease after the fifth year if its gross sales did not reach a specified amount, defendant and plaintiffs agreed that defendant would pay the brokerage commission [270]*270due for the first five years of the lease and reserve payment on the balance, liability for which would depend upon whether Record Town exercised or waived its right to terminate the lease. Defendant paid plaintiffs for the commissions accrued for the first five years of the lease. Subsequently, during the third year of the lease, defendant and Record Town entered into a surrender and cancellation agreement of the lease in exchange for a $3,000,000 payment from defendant to Record Town.

The IAS Court’s decision to grant defendant’s cross motion for summary judgment and deny plaintiffs’ motion seeking the balance of the brokerage commission for years six through fifteen of the Record Town lease was proper. Paragraph 4 (i) of the brokerage agreement specifically provided that “if, after the Lease shall have been executed and exchanged by [defendant] and Tenant, the Lease shall be canceled, or terminated and not thereinafter reinstated * * * before all of the installment payments of the Lease Commission in connection with the Lease have become due and payable, then, from and after the effective date of such cancellation or termination of the Lease * * * [defendant] shall be relieved and discharged from paying any of the subsequent installments of such Lease Commission.” Concur — Rosenberger, J. P., Nardelli, Ellerin, Wallach and Rubin, JJ.

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Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about February 10, 2000, which denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff real estate brokers entered into a brokerage agreement with defendant pursuant to which defendant agreed to pay plaintiffs two percent of the base rent for the entire term of a fifteen-year lease between defendant and Record Town. Because there was a clause in the lease permitting Record Town to terminate the lease after the fifth year if its gross sales did not reach a specified amount, defendant and plaintiffs agreed that defendant would pay the brokerage commission [270]*270due for the first five years of the lease and reserve payment on the balance, liability for which would depend upon whether Record Town exercised or waived its right to terminate the lease. Defendant paid plaintiffs for the commissions accrued for the first five years of the lease. Subsequently, during the third year of the lease, defendant and Record Town entered into a surrender and cancellation agreement of the lease in exchange for a $3,000,000 payment from defendant to Record Town.

The IAS Court’s decision to grant defendant’s cross motion for summary judgment and deny plaintiffs’ motion seeking the balance of the brokerage commission for years six through fifteen of the Record Town lease was proper. Paragraph 4 (i) of the brokerage agreement specifically provided that “if, after the Lease shall have been executed and exchanged by [defendant] and Tenant, the Lease shall be canceled, or terminated and not thereinafter reinstated * * * before all of the installment payments of the Lease Commission in connection with the Lease have become due and payable, then, from and after the effective date of such cancellation or termination of the Lease * * * [defendant] shall be relieved and discharged from paying any of the subsequent installments of such Lease Commission.” Concur — Rosenberger, J. P., Nardelli, Ellerin, Wallach and Rubin, JJ.

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Bluebook (online)

279 A.D.2d 269, 719 N.Y.S.2d 15, 2001 N.Y. App. Div. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andover-retail-services-inc-v-lincoln-metrocenter-partners-lp-nyappdiv-2001.