Sotheby's International Realty, Inc. v. Dunemere Associates Real Estate

275 A.D.2d 318, 712 N.Y.S.2d 574, 2000 N.Y. App. Div. LEXIS 8584

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 7, 2000
• Status: Published

Opinion

—In an action to recover damages for breach of a broker’s agreement, the defendant Dunemere Associates Real Estate appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Suffolk County (Costello, J.), dated June 29, 1999, as granted the plaintiff’s motion for summary judgment on the complaint, directed it to pay the plaintiff the principal sum of $30,000, and denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it, and (2) a judgment of the same court, entered March 7, 2000, as is in favor of the plaintiff and against it in the principal sum of $30,000, and the defendant Maurice J. Cunniffe cross-appeals from so much of the same judgment as, upon the order, in effect, denied that branch of his motion which was for summary judgment on his cross claim against the defendant Dunemere Associates Real Estate for an award of an attorney’s fee. The notices of appeal from the order are also deemed to be notices of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal and cross appeal from the order are dismissed; and it is further,

Ordered that the judgment is modified, on the law, by deleting the provision thereof which, in effect, denied that branch of the motion of the defendant Maurice J. Cunniffe which was for summary judgment on his cross claim against the defendant Dunemere Associates Real Estate for an award of an attornéy’s fee, and substituting therefor a provision granting that branch of his motion; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, and the matter is remitted to the Supreme Court, Suffolk County, to calculate an award of an attorney’s fee and entry of an appropriate amended judgment; and it is further,

Ordered that the defendant Maurice J. Cunniffe and the plaintiff are awarded one bill of costs payable by the defendant Dunemere Associates Real Estate.

The appeal and cross appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal and cross appeal from the judgment (see, CPLR 5501 [a] [1]).

The parties agreed that the plaintiff and the defendant Dunemere Associates Real Estate (hereinafter Dunemere) were to act as co-exclusive brokers for the sale of the property of the defendant Maurice J. Cunniffe, and were to share in the commission. Although their written agreements to that effect expired prior to the sale of the property, it is apparent from their conduct, and their sworn statements, that the written agreements were extended orally (see, General Obligations Law § 5-701 [a] [10]).

Pursuant to an indemnification clause in a written agreement between Dunemere and Cunniffe, Dunemere is liable for Cunniffe’s reasonable attorneys’ fees in defending this action (see, Milani v Broadway Mall Props., 261 AD2d 370; Perchinsky v State of New York, 232 AD2d 34, 40; Merchants Mut. Ins. Co. v Saxon Indus., 170 AD2d 654). O’Brien, J. P., Goldstein, Luciano and Smith, JJ., concur.