Raymond Babtkis Associates, Inc. v. Tarazi Realty Corp.

Decision Date07 May 1970
PartiesRAYMOND BABTKIS ASSOCIATES, INC., Plaintiff-Respondent, v. TARAZI REALTY CORPORATION, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

C. S. Barasch, New York City, for plaintiff-respondent.

M. A. Neff, New York City, for defendant-appellant.

Before EAGER, J.P. and CAPOZZOLI, NUNEZ and STEUER, JJ.

PER CURIAM.

Order, entered August 11, 1969, reversed, on the law, with $50 costs and disbursements to the appellant, and defendant's motion for summary judgment dismissing the complaint is granted with permission to plaintiff to apply to Special Term for leave to serve an amended complaint. The complaint (which improperly combines two claimed causes of action into a singly stated cause) is premised mainly on an oral agreement which, as pleaded, is invalid under the statute of frauds. The complaint alleges the employment by the defendant of the plaintiff as a broker to procure a tenant for certain premises upon an agreement by the defendant 'to pay to the plaintiff commissions at the rates recommended by the Real Estate Board of New York, Inc.' It is then alleged that the plaintiff did procure a ready, willing and able tenant to lease the premises 'for a term of 21 years at a rental of $30,000 per annum for the first five years thereof, $35,000 per annum for the second five years thereof and $45,000 per annum for the remaining eleven years thereof as against 7% Of the gross sales to be made by the said tenant procured by the plaintiff'. It is further alleged that the term, rental and other conditions of the lease were mutually satisfactory and agreeable to the defendant and the proposed tenant.

Concededly, where the rental is based in whole or in part upon a percentage of the gross receipts of the lessee's yearly business, the rules of the Real Estate Board provide that the commission shall be computed at specified rates upon the rental which is determined by applying a set percentage to the annual gross receipts. Under these rules, although a broker is entitled to receive immediately that portion of his commission with may be determined upon the basis of the specified minimum rental for the entire term of the lease, his full commission cannot be determined until a computation based on the gross receipts is made at the end of each year. Therefore, the agreement as pleaded by plaintiff is not to be performed within one year and, inasmuch as it is not evidenced by any note or memorandum, it would be void under the statute of frauds. (General Obligations Law § 5--701(1)). (See Mosberg v. Judson Enterprises, Sup., 139 N.Y.S.2d 780; Jaffe v. New York Towers, City Ct., 108 N.Y.S.2d 193.)

The plaintiff, contending that the statute of frauds is not applicable to the particular agreement between the parties, avers that representatives of the defendant landlord stated that 'they would not pay me (plaintiff) any commission based on the percentage rental'; and that 'I, in turn, agreed to limit my commission insofar as the landlord was concerned, to the fixed minimum rentals and that I would try to arrange additional compensation from the tenant'. In support of this unpleaded special agreement, the plaintiff refers to a letter which is in the nature of a self-serving declaration. The plaintiff's complaint further alleges that included within the terms and conditions of the proposed leasing and defendant's agreement, was an agreement by the proposed tenant to pay plaintiff additional commissions upon the closing of the deal. Thereupon, the plaintiff, as stated in its complaint, seeks recovery of the amount of such commissions from the defendant, 'representing the damages sustained by the plaintiff and which the...

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15 cases
  • Burke v. Bevona
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 18 d3 Janeiro d3 1989
    ...567, 344 N.Y.S.2d 190 (1973); Feinerman v. Russ Togs, Inc., 37 A.D.2d 805, 324 N.Y.S.2d 855 (1971); Babtkis Associates, Inc. v. Tarazi Realty Corp., 34 A.D.2d 754, 310 N.Y.S.2d 343 (1970) (mem.); Sales Ammunition, Inc. v. Standard Paper Mfg. Co., 34 A.D.2d 516, 308 N.Y.S.2d 635 (1970) (mem.......
  • Cron v. Hargro Fabrics, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • 26 d4 Março d4 1998
    ...the year," was unenforceable under the Statute of Frauds (8 A.D.2d at 350, 187 N.Y.S.2d 866; see also, Babtkis Assocs. v. Tarazi Realty Corp., 34 A.D.2d 754, 310 N.Y.S.2d 343 [plaintiff's "full commission cannot be determined until a computation based on the gross receipts is made at the en......
  • Alvord and Swift v. Stewart M. Muller Const. Co., Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • 21 d4 Dezembro d4 1978
    ...N.Y.S.2d 166, 170 (Bergan, J.); Elsfelder v. Cournand, 270 App.Div. 162, 165, 59 N.Y.S.2d 34, 37; cf. Babtkis Assoc. v. Tarazi Realty Corp., 34 A.D.2d 754, 755, 310 N.Y.S.2d 343, 345). It has only been the dead hand of a criticized case that influenced courts to grant summary judgment for d......
  • John William Costello Associates, Inc. v. Standard Metals Corp.
    • United States
    • New York Supreme Court
    • 2 d4 Dezembro d4 1982
    ...cites two appellate decisions as supporting this proposition. These cases are not controlling. In Raymond Babtkis Associates Inc. v. Tarazi Realty Corp., 34 A.D.2d 754, 310 N.Y.S.2d 343, the court dismissed a complaint as violative of the statute of frauds, where plaintiff, a real estate br......
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1 books & journal articles
  • § 29A.01 General Considerations
    • United States
    • Full Court Press Negotiating and Drafting Commercial Leases CHAPTER 29A Lease Brokerage
    • Invalid date
    ...v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 670 N.Y.S.2d 973, 694 N.E.2d 56 (1998); Raymond Babtkis Associates, Inc. v. Tarazi Realty Corp., 34 A.D.2d 754, 310 N.Y.S.2d 343 (1st Dept. 1970).[25] Raymond Babtkis Associates, Inc. v. Tarazi Realty Corp., 34 A.D.2d 754, 310 N.Y.S.2d 343 (1st Dept. ......

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