NRT N.Y., LLC v. Harding

• Decision Date: 02 September 2015
• Docket Number: 2014-11477, Index No. 4696/14.
• Citation: 2015 N.Y. Slip Op. 06719,131 A.D.3d 952,16 N.Y.S.3d 255
• Parties: NRT NEW YORK, LLC, doing business as Corcoran Group, appellant, v. Martin HARDING, respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 952

16 N.Y.S.3d 255

2015 N.Y. Slip Op. 06719

NRT NEW YORK, LLC, doing business as Corcoran Group, appellant

v.Martin HARDING, respondent.

2014-11477, Index No. 4696/14.

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

Sept. 2, 2015.

Margolin & Pierce, LLP, New York, N.Y. (Philip Pierce and Errol F. Margolin of counsel), for appellant.

Kriegsman P.C., Sag Harbor, N.Y. (Alex Kriegsman of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated November 3, 2014, which denied its motion for summary judgment on the complaint, with leave to renew after the completion of discovery.

ORDERED that the order is affirmed, with costs.

In June 2012, the plaintiff and the defendant entered into an exclusive right-to-sell listing agreement (hereinafter the agreement), pursuant to which the plaintiff was retained as the defendant's broker in connection with the sale of the defendant's two properties in Sag Harbor. The agreement had a 12–month term. The defendant agreed to pay a 5% commission to the plaintiff if the properties sold during the pendency of the agreement, regardless of whether the plaintiff or the defendant himself procured the buyer, except that the defendant would be excused from the obligation to pay the commission if a contract for the sale of the properties was entered into with a certain named individual within the first 30 days of the term of the agreement and the sale was consummated during the 12–month term.

During the first 30 days of the term of the agreement, the named individual did not enter into a contract with the defendant for the purchase of the properties and, at the end of the 12 month-term of the agreement, the plaintiff had yet to secure a buyer. The plaintiff, through one of its affiliated individual brokers, approached the defendant about extending the term of the agreement. The defendant would only agree to extend the term of the agreement if his exemption from the obligation to pay a brokerage commission were applied to the sale of the properties to a particular private buyer other than the one initially identified in the agreement. According to the defendant, the proposed substitute buyer had shown interest in the properties before the defendant entered into the initial agreement with the plaintiff. It was eventually agreed, in a document entitled Extension of Exclusive Listing Agreement (hereinafter the extension), that a similar exemption from the obligation to pay a commission would be recognized in connection with a purchase by “a private party identified as James Walker” (emphasis added), and that such a purchase would “be exempted from the agreement and all aspects of it with no restrictions.” The extension, which was executed by the parties, also provided that the other terms and conditions of the agreement were extended to June 15, 2014.

In July 2013, the defendant entered into contracts to sell the properties to his neighbor, who, according to the defendant, although not actually named “James Walker,” employed the name “James Walker” as a pseudonym to protect his privacy. The defendant and “James Walker” proceeded to close on the sale of the properties.

The plaintiff demanded a full commission from the defendant pursuant to the terms of the agreement and the extension, and the defendant declined to pay it. The plaintiff thereafter commenced this action to recover damages for breach of contract, and subsequently moved for summary judgment on the complaint. The Supreme Court denied the plaintiff's motion, with leave to renew upon the completion of discovery.

“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent” (Greenfield v. Philles Records,

98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 ; see Dysal, Inc. v. Hub Props. Trust, 92 A.D.3d 826, 827, 938 N.Y.S.2d 642 ; Maser Consulting, P.A. v. Viola Park Realty, LLC, 91 A.D.3d 836, 836, 936 N.Y.S.2d 693 ; Staples the Off. Superstore E., Inc. v. Flushing Town Ctr. III, L.P., 90 A.D.3d 638, 639, 933 N.Y.S.2d 732 ). “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 ; see Albert Jacobs, LLP v. Parker, 94 A.D.3d 919, 920, 942 N.Y.S.2d 597 ; Scotto v. Georgoulis, 89 A.D.3d 717, 718–719, 932 N.Y.S.2d 120 ; Ross v. Sherman, 57 A.D.3d 758, 870 N.Y.S.2d 383 ). “To determine whether a writing is unambiguous, language should not be read in isolation because the contract must be considered as a whole” (Brad H. v. City of New York, 17 N.Y.3d 180, 185, 928 N.Y.S.2d 221, 951 N.E.2d 743 ; see Carucci v. Kaplan, 92 A.D.3d 912, 912–913, 938 N.Y.S.2d 915 ). If the language of the contract is susceptible of more than one reasonable interpretation, the contract will be considered ambiguous (see Brad H. v. City of New York, 17 N.Y.3d at 186, 928 N.Y.S.2d 221, 951 N.E.2d 743 ).

The threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are issues of law within the province of the court (see W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 566 N.E.2d 639 ; Maser Consulting, P.A. v. Viola Park...