Julien J. Studley, Inc. v. Lefrak

• Decision Date: 15 December 1975
• Citation: 376 N.Y.S.2d 200,50 A.D.2d 162
• Parties: JULIEN J. STUDLEY, INC., et al., Respondents, v. Samuel J. LEFRAK et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 200

376 N.Y.S.2d 200

50 A.D.2d 162

JULIEN J. STUDLEY, INC., et al., Respondents, v. Samuel J. LEFRAK et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Dec. 15, 1975.

Rogers & Wells, New York City (Guy C. Quinlan, William R. Glendon and James M. Asher, New York City, of counsel), for appellants.

Shatzkin, Cooper, Labaton, Rudoff & Bandler, New York City (Burton S. Cooper, Alan E. Bandler and Douglas A. Cooper, New York City, of counsel), for respondents.

Before HOPKINS, Acting P.J., and LATHAM, MARGETT, BRENNAN and SHAPIRO, JJ.

MARGETT, Justice.

The plaintiffs, according to the complaint, are duly licensed real estate brokers. They commenced this action for breach of contract (the first four causes of action) and libel (the fifth and sixth causes of action) as the result of certain events arising out of an alleged breach by the defendants of certain agreements. Both parties have characterized the libel causes of action as being also for abuse of process. The defendants moved for partial summary judgment or, in the alternative, to limit the issues of fact for trial. For the reasons set forth below, we modify the order of the Special Term, which denied the motion, to the extent of granting the defendants partial summary judgment, i.e., so as to dismiss the fifth and sixth causes of action.

The plaintiffs' first and fourth causes of action are founded directly upon two agreements entered into by plaintiff Julien J. Studley, Inc. under which it was to act as the exclusive renting agent for two buildings to be constructed, i.e., one agreement with defendant Fifth Avenue Leasing Corp. dated March 19, 1968 and the other with defendant LSS Leasing Corporation dated March 28, 1968. Each agreement contained a provision declaring that it would continue in effect until six months after completion of the separate building with which it was concerned, but that the contracting defendant would have the right to cancel it upon 30 days' written notice any time after one year following the commencement of construction of the building. Shortly after execution of these agreements, a dispute arose between the parties and, in a series of letters during June, 1968, the contracting defendants, through defendant Lefrak Organization, Inc., notified the plaintiffs that both agreements were being terminated on the ground of a conflict of interest on the part of the plaintiffs.

Noting the above contract provision permitting cancellation, the defendants argue that the question as to the relevant damage periods which would apply in the event the plaintiffs establish their claims for breach of these agreements is an issue ripe for summary judgment. We disagree. Firstly, it is to be observed that the date or dates when construction of the buildings commenced have not been established in the record on this appeal. Without this information, calculation of when the defendants' right to terminate began is not possible. Secondly, even if the time to rightfully terminate was readily ascertainable, the profits resulting from a renting agency agreement cannot be predicted with certainty, but depend in large measure upon the efforts of the agent. Such an issue involves questions of fact properly reserved for trial. Lastly, we also note the undesirable practice of making this kind of motion substantially after inception of the action and on the eve of trial (Pollak v. Lake Tibet Estates, 19 A.D.2d 747, 242 N.Y.S.2d 894). For these reasons we hold that the Special Term properly denied the defendants' motion as to the breach of contract claims in the first and fourth causes of action.

The plaintiffs' causes of action in libel are predicated upon the submission by defendant Lefrak Organization, Inc. of an affidavit to the Department of State of the State of New York in support of a complaint charging the plaintiff real estate brokers with breach of fiduciary duty and untrustworthiness under section 441--c of the Real Property Law. The affidavit, filed as part of a proceeding in which evidence was taken at a hearing before an examiner and in which the parties were represented by counsel, contains several allegations of professional misconduct clearly pertinent thereto.

Although the complaint further alleges that all the defendants willfully and maliciously circulated false and defamatory matter concerning the individual plaintiff's trustworthiness as a broker, no such proof in this regard was submitted in the papers opposing partial summary judgment and we therefore hold this claim to be insufficient as a matter of law (cf. Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333).

The defendants assert that the filing of the affidavit with the Department of State is within the scope of a qualified privilege as a...