SALVADOR JR. v. Uncle Sam's Auctions & Realty, Inc.

• Decision Date: 24 July 2003
• Citation: 763 N.Y.S.2d 360,307 A.D.2d 609
• Court: New York Supreme Court — Appellate Division
• Parties: JOHN SALVADOR, JR. et al., Appellants-Respondents,<BR>v.<BR>UNCLE SAM'S AUCTIONS & REALTY, INC., By and Through its Officer, RALPH F. PASSONNO, JR., Respondent-Appellant.

307 A.D.2d 609

763 N.Y.S.2d 360

JOHN SALVADOR, JR. et al., Appellants-Respondents,

v.UNCLE SAM'S AUCTIONS & REALTY, INC., By and Through its Officer, RALPH F. PASSONNO, JR., Respondent-Appellant.

Lahtinen, J.

Decided July 24, 2003.

Crew III, J.P., Peters, Mugglin and Rose, JJ., concur.

Lahtinen, J Defendant provided plaintiffs with a proposed contract in which it offered, in exchange for certain commissions, to market, auction and, if necessary, broker the sale of four tracts of real property owned by plaintiffs on Lake George in the Town of Queensbury, Warren County. After plaintiffs consulted with their attorney, who drafted addenda, the parties signed an agreement. Tract one contained 13 acres and a lodge, tract two was 116 acres of vacant land, tract three included a marina on six acres, and tract four consisted of six subdivided one-third acre parcels. The agreement provided for a minimum sale price for the entire property of $2,500,000 if sold at auction and $2,750,000 if sold after the auction.

At the auction, bids were elicited both for various combinations of the tracts and for the entire parcel. The highest bid on a combination of tracts one, two and four was $1,765,000 and the highest bid on the entire parcel was $2,640,000. During an adjournment of the auction, plaintiffs met with Ralph F. Passonno, Jr., president of defendant. Although plaintiffs were ostensibly satisfied with the amount offered for tracts one, two and four, they felt that the tract containing the marina could be sold separately for more than the difference between the two pending high bids (i.e., $875,000). Thus, plaintiffs elected to accept the bid on tracts one, two and four and withdrew tract three from the auction. According to Passonno, he unequivocally informed plaintiffs that, by obtaining a bid for the entire parcel in excess of $2,500,000, defendant had earned a 10% commission on the entire sale and plaintiffs would be so charged even if they withdrew tract three. Plaintiffs, however, contend that Passonno acquiesced to their withdrawing tract three from the auction.

The closings eventually occurred on tracts one, two and four and, in addition to commissions on those tracts, defendant withheld an additional $87,500, representing the commission it claimed it had earned on the tract that plaintiffs withdrew from the auction. Plaintiffs eventually commenced this action setting forth seven causes of action alleging various theories of liability. Defendant asserted a counterclaim in its answer for counsel fees as purportedly permitted under the parties' contract. Thereafter, defendant moved for summary judgment dismissing the complaint and awarding it counsel fees. In a thorough decision, Supreme Court dismissed six of plaintiffs' causes of action, but found—with respect to the first cause of action—questions of fact as to whether defendant had...