Joan & Dorothy Realty Corp. v. Brookville Properties, Inc.

173 A.D.2d 783, 570 N.Y.S.2d 646, 1991 N.Y. App. Div. LEXIS 8801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1991
• Status: Published

Opinion

In an action to recover a real estate broker’s commission, the defendants appeal from (1) an order of the Supreme Court, Nassau County (Morrison, J.), entered March 23, 1990, which granted the plaintiffs motion for summary judgment, and (2) an order of the same court, dated August 1, 1990, which denied their motion for renewal.

Ordered that the orders are affirmed, with one bill of costs.

The plaintiff established its entitlement to summary judgment by virtue of the commission agreement between the parties. In response the defendants failed to establish the existence of a triable issue of fact which would preclude the granting of summary judgment in the plaintiff’s favor. The existence of an agreement between the individual defendant’s wife, who is a real estate salesperson, and the plaintiff, as to the former’s entitlement to a percentage of certain commissions received by the latter simply fails to provide a basis upon which to conclude that the defendants were not required to abide by their separate agreement with the plaintiff. Nor does the evidence submitted by the defendants establish the existence of a triable issue of fact as to the defense of fraudulent inducement. The defendants have likewise failed to establish the existence of facts essential to justify opposition to the summary judgment motion which they cannot state without discovery (see, CPLR 3212 [f]). Therefore, the Supreme Court did not err in granting summary judgment to the plaintiff.

The defendants’ contention with respect to the motion for renewal is without merit. Thompson, J. P., Brown, Eiber and Harwood, JJ., concur.