Sbarra v. Totolis

191 A.D.2d 867, 594 N.Y.S.2d 868, 1993 N.Y. App. Div. LEXIS 2366
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 11, 1993
StatusPublished
Cited by7 cases

This text of 191 A.D.2d 867 (Sbarra v. Totolis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sbarra v. Totolis, 191 A.D.2d 867, 594 N.Y.S.2d 868, 1993 N.Y. App. Div. LEXIS 2366 (N.Y. Ct. App. 1993).

Opinion

Harvey, J.

Appeal from an order of the County Court of Broome County (Mathews, J.), entered October 4, 1991, which affirmed a judgment of the City Court of the City of Binghamton in favor of plaintiff.

Defendant and his now-deceased partner, Richard Kelly, owned a building located in Endwell, a community in the Town of Union, Broome County. In March 1984, defendant and Kelly leased the property to Victor Di Dominick, Joseph Ferraro and Brenda Sue Nutter (hereinafter collectively referred to as the named tenants) so that those persons could operate a "Magic Prints Photo Finish” store. The lease was for five years commencing April 15, 1984 and ending March 31, 1989, but it contained an option to extend the lease for an additional five years. There is no dispute that the above-mentioned parties were brought together through the auspices of plaintiff’s brokerage company as evidenced by the March 1984 commission agreement that is the subject of this proceeding. This agreement states that plaintiff was the procuring broker for Kelly and defendant and the named tenants, and that Kelly and defendant agreed to pay plaintiff semiannual brokerage fees in a set schedule. As is pertinent to this action, the agreement states the following:

"In the event landlord transfers title of premises to tenant or assignee or sub/lessee, it shall be deemed that the options have been exercised and commissions are due thereon per schedule below.
"Year 1, 1984 starts 4/15/84 $414.00, payable $207.00 on 4/15/84 and 10/15/84
"Year 2, 10/15/85 1985 $414.00, payable $207.00 on 4/15/85 and
"Year 3, 10/15/86 1986 $414.00, payable $207.00 on 4/15/86 and
"Year 4, 10/15/87 1987 $450.00, payable $225.00 on 4/15/87 and
"Year 5, 10/15/88 1988 $450.00, payable $225.00 on 4/15/88 and
"If option exercised
"Year 6, 10/15/89 1989 $504.00, payable $252.00 on 4/15/89 and
"Year 7, 10/15/90 1990 $504.00, payable $252.00 on 4/15/90 and
"Year 8, 1991 $504.00, payable $252.00 on 4/15/91 and 10/15/91
[869]*869"Year 9, 1992 $540.00, payable $270.00 on 4/15/92 and 10/15/92
"Year 10, 1993 $540.00, payable $270.00 on 4/15/93 and 10/15/93”.

Subsequently, on December 26, 1985, the building was sold to, and the lease was ultimately assigned to, Eugene Brozetti and Warren Hill. In September 1987, the named tenants sold their interest in Magic Prints Photo Finish to Frank Hornick, Jr., who then became the building’s tenant. Around that time, Hornick sent a letter to Hill formally exercising the option in the lease to extend the lease for another five years. In the meantime, defendant continued paying plaintiff the commissions contained in the above-listed schedule until November 1987, when defendant informed plaintiff that he considered his assignees, Brozetti and Hill, to now be responsible for paying the commission to plaintiff. However, because Brozetti and Hill specifically only took assignment of the lease and not the March 1984 commission agreement, they declined to pay.

Subsequently, plaintiff commenced this action seeking to recover the unpaid installments of the commission agreement, including those listed beyond the required five-year lease term. Following a hearing in Small Claims Court, City Court ruled that the commission agreement described two different events pursuant to which defendant would become obligated to pay the installments contained in the commission agreement schedule. The first event was described within the schedule itself. City Court determined that the phrase "If option exercised” before the scheduled four years 6 through 10 referred to the five-year extension option in the lease which, if exercised, would trigger the remainder of the commission payments. The second event was set forth in the paragraph beginning "In the event landlord”, and effectively stated that if defendant sold the building to the named tenants or their successors, defendant would be obligated to pay the remainder of the commission, the same as if the option to renew had actually been exercised. City Court ruled that both events had occurred in this case and held defendant liable for the payments.

Defendant then appealed this decision to County Court. In that court’s decision and order, County Court basically agreed with City Court’s construction of the commission agreement but held that defendant was liable for the commissions solely because the named tenants’ assignee, Hornick, exercised the option to extend the lease. County Court disagreed that the second triggering event described in the commission agreement was fulfilled because neither the named tenants nor [870]*870their assignee, Hornick, ever purchased the premises.

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Cite This Page — Counsel Stack

Bluebook (online)
191 A.D.2d 867, 594 N.Y.S.2d 868, 1993 N.Y. App. Div. LEXIS 2366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sbarra-v-totolis-nyappdiv-1993.