Nest Seekers, LLC v. Rabin

Opinion

Nest Seekers, LLC v Rabin

2026 NY Slip Op 05107

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Nest Seekers, LLC, etc., appellant,

v

Artie Rabin, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2024-06883, (Index No. 601012/22)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Deborah A. Dowling

Susan Quirk, JJ.

Feldman Smith LLP, Tarrytown, NY (Michael H. Smith of counsel), for appellant.

Margolin & Pierce, LLP, Bridgehampton, NY (Errol F. Margolin of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated June 18, 2024. The order, insofar as appealed from, denied that branch of the plaintiff's cross-motion which was for summary judgment on the cause of action to recover damages for breach of contract.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2020, the defendants executed a co-exclusive right to sell agreement with the plaintiff (hereinafter the agreement), a licensed real estate brokerage firm, pursuant to which the defendants retained the plaintiff and another brokerage firm to sell certain real property located in Water Mill (hereinafter the property), as co-exclusive brokers, for a term of 12 months, "beginning September 22, 2020[,] and ending September 22, 2021." The agreement also included a six-month tail period during which the plaintiff and its co-broker were entitled to a commission if the defendants sold the property to any purchaser to whom the plaintiff or its co-broker "showed" the property "or negotiated with on behalf of [the defendants]" during the term of the agreement. On September 26, 2021, the plaintiff's co-broker under the agreement allegedly showed the property to a prospective buyer, who subsequently purchased the property from the defendants in December 2021. The defendants did not pay the plaintiff a brokerage commission.

In January 2022, the plaintiff commenced this action against the defendants to recover damages for breach of contract and to recover under a theory of quantum meruit. The complaint alleged, among other things, that the parties executed the agreement on October 8, 2020, and that the parties therefore intended for the 12-month term of the agreement to run from October 8, 2020, to October 7, 2021. Following the completion of discovery, the defendants moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the complaint. In an order dated June 18, 2024, the Supreme Court denied both motions. The plaintiff appeals from so much of the order as denied that branch of its cross-motion which was for summary judgment on the cause of action to recover damages for breach of contract.

Contrary to the plaintiff's contention, it failed to make a prima facie showing of entitlement to judgment as a matter of law on the cause of action to recover damages for breach of [*2]contract. "The 'fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent[,] and [t]he best evidence of what parties to a written agreement intend is what they say in their writing'" (Wagschal v Ecconergy, 241 AD3d 597, 599 [internal quotation marks omitted], quoting Donohue v Cuomo, 38 NY3d 1, 12). "'When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment'" (Sabre Real Estate Group, LLC v JQ1 Assoc., LLC, 204 AD3d 1051, 1052, quoting Shadlich v Rongrant Assoc., LLC, 66 AD3d 759, 760; see NRT N.Y., LLC v Brown, 167 AD3d 764, 765). Here, the plaintiff's submissions failed to eliminate triable issues of fact as to whether the defendants were obligated to pay it a brokerage commission pursuant to the agreement upon the defendants' sale of the property in December 2021. Accordingly, the Supreme Court properly denied that branch of the plaintiff's cross-motion which was for summary judgment on the cause of action to recover damages for breach of contract without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The defendants' request for certain affirmative relief is not property before this Court, since their appeal from the order dated June 18, 2024, was deemed dismissed pursuant to 22 NYCRR 1250.10(a) (see Renaissance Contrs. & Bldrs. Corp. v Academy Charter Sch. Middle Sch., 227 AD3d 1015, 1017).

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court