Cusumano Assocs., Inc. v. Politoski

• Decision Date: 25 June 2014
• Citation: 988 N.Y.S.2d 665,2014 N.Y. Slip Op. 04728,118 A.D.3d 936
• Parties: CUSUMANO ASSOCIATES, INC., doing business as L.I. House Hunters, respondent, v. Paul POLITOSKI, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 936

988 N.Y.S.2d 665

2014 N.Y. Slip Op. 04728

CUSUMANO ASSOCIATES, INC., doing business as L.I. House Hunters, respondent,

v.Paul POLITOSKI, et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

June 25, 2014.

Andrew D. Greene, P.C., Lake Success, N.Y., for appellants.

Harry H. Kutner, Jr., Mineola, N.Y. (Renton D. Persaud of counsel), for respondent.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendants Paul Politoski and Gisele Politoski appeal from a judgment of the Supreme Court, Nassau County (K. Murphy, J.), dated May 21, 2012, which, upon a decision dated April 16, 2012, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $18,750.

ORDERED that the judgment is reversed, on the law and the facts, with costs, and the complaint is dismissed insofar as asserted against the appellants.

The defendants Paul Politoski and Giselle Politoski (hereinafter together the appellants) engaged Manon Bibeau, a licensed real estate agent employed by the plaintiff, to assist them in the purchase of a weekend residence in East Hampton. Bibeau and the appellants signed a preprinted “Exclusive Buyer Broker Agreement” dated October 7, 2007, which had a three-month duration and provided, in part, that “BUYER agrees to pay the BROKER a commission of ‘SBC.’ ”

On or about October 14, 2008, the appellants agreed to purchase a residential property in East Hampton owned by the defendant Bruce Goldstein. In an email to Goldstein, Bibeau confirmed that the plaintiff would be receiving a commission of 3%, or $18,750, of the $625,000 purchase price. The appellants and Goldstein entered into a residential contract of sale, which provided that “Seller shall pay Broker any commission” on the sale. At the closing on the purchase, the appellants delivered bank checks in the total amount of the $625,000 purchase price; no commission was paid to the plaintiff, which did not attend the closing.

The plaintiff subsequently commenced this action against the appellants and Goldstein to recover the commission. At a nonjury trial, Bibeau testified that she expected the commission to be paid by Goldstein and not the appellants, that she informed the appellants that the commission would be paid by Goldstein, and that she negotiated the 3% commission rate with Goldstein. Lora Cusumano, the plaintiff's principal, testified that the term “SBC,” which she wrote into the Exclusive Buyer Broker Agreement, referred to “seller broker compensation,” and meant that the broker would represent the seller and that the seller would pay the commission. The Supreme Court determined that the plaintiff had established that the appellants...