Thomas A. Sbarra Real Estate Inc. v. Lavelle–tomko

• Decision Date: 12 May 2011
• Citation: 2011 N.Y. Slip Op. 03952,921 N.Y.S.2d 919,84 A.D.3d 1570
• Court: New York Supreme Court — Appellate Division
• Parties: THOMAS A. SBARRA REAL ESTATE, INC., Doing Business as Century 21 Sbarra & Wells, et al., Respondents,v.Kathleen A. LAVELLE–TOMKO, Appellant.

84 A.D.3d 1570
921 N.Y.S.2d 919
2011 N.Y. Slip Op. 03952

THOMAS A. SBARRA REAL ESTATE, INC., Doing Business as Century 21 Sbarra & Wells, et al., Respondents,
v.
Kathleen A. LAVELLE–TOMKO, Appellant.

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

May 12, 2011.

Aswad & Ingraham, Binghamton (Richard N. Aswad of counsel), for appellant.Pope & Schrader, Binghamton (Alan J. Pope of counsel), for respondents.Before: MERCURE, J.P., LAHTINEN, MALONE JR., KAVANAGH AND GARRY, JJ., concur.MALONE JR., J.

[84 A.D.3d 1570] Appeal from an order of the Supreme Court (Lebous, J.), entered September 9, 2010 in Broome County, which denied defendant's motion to dismiss the complaint.

In 2007, plaintiffs and defendant, a former employee of plaintiff Thomas A. Sbarra Real Estate, Inc., entered into a settlement

[921 N.Y.S.2d 920]

agreement by which, among other things, plaintiffs [84 A.D.3d 1571] agreed to discontinue a lawsuit against defendant, and defendant agreed to surrender her real estate broker license and cease acting as a real estate agent. Approximately three years later, plaintiffs commenced this action, alleging that defendant had breached the terms of the settlement agreement by, among other things, obtaining a broker license and acting as a real estate agent. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1). Supreme Court denied the motion and defendant appeals.

“A CPLR 3211(a)(1) motion ‘may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ ” ( Jesmer v. Retail Magic, Inc., 55 A.D.3d 171, 180, 863 N.Y.S.2d 737 [2008], quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]; see Berardino v. Ochlan, 2 A.D.3d 556, 557, 770 N.Y.S.2d 75 [2003] ). Here, in support of her motion, defendant presented the parties' settlement agreement and averred that she had complied with every term contained therein, including the requirement that she “surrender her real estate [broker] license and otherwise cease acting as a real estate agent or broker by September 1, 2007.” According to defendant, there is nothing in the agreement that prohibits her from regaining her broker license or reentering the workforce as a real estate agent or broker. Plaintiffs aver that the absence of a sunset clause in the agreement indicates that defendant was required to permanently...