Breslin Realty Dev. Corp. v. Nassi

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 23, 2017
• Docket: 2017 NYSlipOp 50711(U)
• Status: Published

Opinion

Breslin Realty Development Corp., Appellant,

against

Iraj Nassi, Respondent.

Gary N. Weintraub, LLP (Gary N. Weintraub, Esq.), for appellant. Martin Katzman, Esq., for respondent.

Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), dated August 28, 2015. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by plaintiff, a real estate brokerage corporation, to recover the principal sum of $4,224.44, representing the balance of a commission allegedly owed, the complaint alleges that the parties entered into a written agreement pursuant to which defendant, as "owner," gave plaintiff the exclusive right to lease certain premises for a specified commission; that, over a period of months, plaintiff marketed the premises; and that plaintiff procured Design House Decor, LLC (Design House) as a tenant for the premises. The complaint further alleges that plaintiff was the direct and proximate cause that brought defendant together with Design House and created an atmosphere which resulted in defendant executing a lease of the premises to Design House. Following the joinder of issue, plaintiff moved for summary judgment. Plaintiff appeals from an order of the District Court denying its motion.

The exclusive right to lease agreement was for a six-month term. At the time plaintiff introduced Design House to defendant as a prospective tenant, the exclusive right to lease agreement had expired, and, in the papers it submitted in support of its motion, plaintiff failed to [*2]eliminate any material issues of fact from the case or to establish its cause of action sufficiently to warrant the court directing judgment in its favor thereunder (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 1980]). "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). We therefore find no basis to disturb the District Court's denial of plaintiff's motion for summary judgment.

We do not consider arguments that plaintiff made for the first time on appeal.

Accordingly, the order is affirmed.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: May 23, 2017