Opinion
2014-01-3
BAUMANN REALTORS, INC., Plaintiff–Appellant, v. FIRST COLUMBIA CENTURY–30, LLC and HealthNow New York, Inc., Defendants–Respondents.
Blair & Roach, LLP, Tonawanda (David L. Roach of Counsel), for Plaintiff–Appellant. Lewndowski & Associates, West Seneca (Ashley J. Litwin of Counsel), for Defendants–Respondents.
Blair & Roach, LLP, Tonawanda (David L. Roach of Counsel), for Plaintiff–Appellant. Lewndowski & Associates, West Seneca (Ashley J. Litwin of Counsel), for Defendants–Respondents.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action alleging that defendant First Columbia Century–30, LLC (Columbia) breached a broker commission agreement with plaintiff, that defendant HealthNow New York, Inc. (HealthNow) tortiously interfered with that agreement and that, as a result of such breach and tortious interference, plaintiff sustained damages as a third-party beneficiary of a lease. Defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), and Supreme Court granted the motion. We reverse.
Pursuant to a 2001 broker commission agreement, Columbia recognized plaintiff as “the exclusive leasing agent” for HealthNow and agreed to pay plaintiff a commission “for the initial term of the lease” and an additional commission if HealthNow “renew[ed] or extend[ed] the term of the lease.” Thereafter, in 2001, HealthNow and Columbia entered into a 10–year lease with an option to renew for two five-year terms “upon all of the [same] terms and conditions” if HealthNow provided notice of renewal a year “prior to expiration of the then current term.” In 2011, HealthNow, using its own broker, entered into a new lease with Columbia that contained different terms and conditions and purportedly superseded the 2001 lease.
“On a motion to dismiss pursuant to CPLR 3211, pleadings are to be liberally construed ... The court is to accept the facts as alleged in the [pleading] as true ... [and] accord [the proponent of the pleading] the benefit of every possible favorable inference” (Ramos v. Hughes, 109 A.D.3d 1121, 1122, 972 N.Y.S.2d 367 [internal quotation marks omitted] ). A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted if the documentary evidence “resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]” (Wells Fargo Bank, N.A. v. Zahran, 100 A.D.3d 1549, 1550, 954 N.Y.S.2d 719, lv. denied20 N.Y.3d 861, 2013 WL 599758 [internal quotation marks omitted] ).
Contrary to the court's conclusion, the documentary evidence does not conclusively establish as a matter of law that the 2011 lease was a new lease, as opposed to a renewal or extension of the 2001 lease. We conclude that plaintiffs are entitled to discovery on the issue whether the 2011 lease was a renewal or extension of the 2001 lease ( see Ernie Otto Corp. v. Inland Southeast Thompson Monticello, LLC, 91 A.D.3d 1155, 1157, 936 N.Y.S.2d 756, lv. denied19 N.Y.3d 802, 2012 WL 1538328; cf. Stern v. Satra Corp., 539 F.2d 1305, 1310).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.