Opinion
January 3, 1978
In an action to recover brokerage commissions, plaintiff appeals from so much of an order of the Supreme Court, Westchester County, entered March 17, 1977, as (1) in awarding him summary judgment against defendant National Development Corporation, computed interest thereon from January 21, 1977 and (2) granted defendant Millard's cross motion for summary judgment in his favor. The appeal also brings up for review so much of a further order of the same court, entered May 27, 1977, as, upon reargument, adhered to the prior order. Appeal from the order entered on March 17, 1977 dismissed, without costs or disbursements. That order was superseded by the order entered on May 27, 1977, which granted reargument. Order entered May 27, 1977 modified, on the law, by adding thereto, after the words "adheres to its original decision and order", the following: "except that the provision that interest be computed from January 21, 1977 is deleted from that order and a provision that interest be computed from June 1, 1972 is substituted therefor." As so modified, order affirmed insofar as reviewed, without costs or disbursements. In our opinion the evidence established, as a matter of law, that plaintiff earned his commission on June 1, 1972, the date of the lease procured by him, and that his cause of action accrued as of that date (see CPLR 5001). The fact that, after a $2,200 payment on account was made to plaintiff, respondents concluded that he was involved in a conflict of interest with the tenant, of which plaintiff was a director, does not change the fact that plaintiff earned his commission on June 1, 1972 and that he — not respondents — was entitled to the capital and interest thereon. Latham, J.P., Cohalan, Damiani and Hawkins, JJ., concur.