Eagan Real Estate, Inc. v. Burroughs Corp.

138 A.D.2d 966, 526 N.Y.S.2d 691, 1988 N.Y. App. Div. LEXIS 2608

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1988
• Status: Published

Opinion

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The court erred in denying defendant Burroughs’ motion for summary judgment dismissing the first cause of action, which alleged that Burroughs, as lessee, breached its agreement to pay plaintiff a brokerage commission. Burroughs established conclusively by the testimony of Shanahan, plaintiff’s salesman, that plaintiff had no express commission agreement with Burroughs. Furthermore, Shanahan’s admission in his affidavit that he expected "RooneyTecdev” to pay a commission negated an implied contract (cf., Julien J. Studley, Inc. v New York News, 70 NY2d 628, rearg denied 70 NY2d 748).

We have examined plaintiff’s contentions on its cross appeal and find them to be without merit. (Appeals from order of Supreme Court, Onondaga County, Lynch, J. — summary judgment.) Present — Doerr, J. P., Denman, Green, Pine and Law-ton, JJ.