Moore & Bowles, Inc. v. Cottrone Development Co.

Appellate Division of the Supreme Court of New York

Moore & Bowles, Inc. v. Cottrone Development Co.

132 A.D.2d 975, 518 N.Y.S.2d 505, 1987 N.Y. App. Div. LEXIS 49445

Appellate Division of the Supreme Court of the State of New York·Decided July 10, 1987·Published·Cited by 1 cases

Opinion

Order unanimously affirmed without costs. Memorandum: Special Term correctly denied defendant’s motion for summary judgment. The listing agreement entered into by the parties provided that plaintiff was entitled to a sales commission in the event of a sale of the property by anyone during the term of the listing agreement. Therefore, defendant could not have made a sale during this period without becoming liable to plaintiff for a sales commission. Plaintiff has submitted evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, with respect to the defenses of equitable estoppel and bad faith, which require a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324). In view of our determination that the listing agreement gave the exclusive right to sell, defendant’s contention that plaintiff’s claim is barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [1]) is without merit. (Appeal from order of Supreme Court, Monroe County, Galloway, J. — summary judgment.) Present — Dillon, P. J., Callahan, Green, Balio and Davis, JJ.

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Order unanimously affirmed without costs. Memorandum: Special Term correctly denied defendant’s motion for summary judgment. The listing agreement entered into by the parties provided that plaintiff was entitled to a sales commission in the event of a sale of the property by anyone during the term of the listing agreement. Therefore, defendant could not have made a sale during this period without becoming liable to plaintiff for a sales commission. Plaintiff has submitted evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, with respect to the defenses of equitable estoppel and bad faith, which require a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324). In view of our determination that the listing agreement gave the exclusive right to sell, defendant’s contention that plaintiff’s claim is barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [1]) is without merit. (Appeal from order of Supreme Court, Monroe County, Galloway, J. — summary judgment.) Present — Dillon, P. J., Callahan, Green, Balio and Davis, JJ.

Moore & Bowles, Inc. v. Cottrone Development Co., 132 A.D.2d 975, 518 N.Y.S.2d 505, 1987 N.Y. App. Div. LEXIS 49445 (N.Y. Ct. App. 1987).

Pincite

132 A.D.2d 975 (Moore & Bowles, Inc. v. Cottrone Development Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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