Opinion
May 24, 1999
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the appeal and the cross appeal from the decision are dismissed, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding a commission in the principal sum of $304,305.60, and substituting therefor a provision awarding a commission in the principal sum of $396,356.47; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment in accordance herewith; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Contrary to the defendant's contention, the trial court properly denied its motion to set aside the verdict on the issue of liability as against the weight of the evidence. It is well settled that in order for a court to find that a verdict is against the weight of the evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial ( see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744; Cohen v. Hallmark Cards, 45 N.Y.2d 493). Here, the record established that upon entering an agreement with the defendant's president, the plaintiff, a licensed real estate broker, was the procuring cause for two of the leases signed by the defendant and the State of New York. The evidence was undisputed that the plaintiff initiated telephone conversations, maintained written correspondence, and arranged and attended meetings between the parties, thereby generating a chain of circumstances that ultimately led to the leases, and entitling him to the agreed-upon broker's commission ( see, 2 Warren's Weed, New York Real Property, Brokers, § 6.01 [4] [a] [4th ed 1998]; see also, Buck v. Cimino, 243 A.D.2d 681). Upon the evidence presented of the plaintiff's continuing efforts to keep the deal alive, the jury's finding that the plaintiff did not abandon his efforts to procure a tenant and that he was, in fact, the procuring cause of two of the leases is entitled to great deference, as it had the opportunity to view the witnesses, hear their testimony, and observe their demeanor ( see, John Eric Jacoby, M.D., P. C. v. Loper Assocs., 249 A.D.2d 277; Adinolfi v. Adinolfi, 242 A.D.2d 311).
Although the trial court properly deducted the cost of construction from the commissions, the court erred by additionally deducting operating expenses. Unlike construction costs, operating expenses were not addressed in the commission agreement and there was no basis for admitting extrinsic evidence as to what the parties purportedly intended ( see, W. W. W. Assocs. v. Giancontieri, 77 N.Y.2d 157; Automotive Mgt. Group v. SRB Mgt. Co., 239 A.D.2d 450). Accordingly, the judgment is modified by adding those expenses to the sum awarded to the plaintiff.
The defendant's remaining contentions are without merit.
O'Brien, J. P., Goldstein, Luciano and Schmidt, JJ., concur.