Opinion
2012-12-4
COLLIERS ABR, INC., Plaintiff–Respondent, v. FAMURB COMPANY, et al., Defendants–Appellants.
Oberdier Ressmeyer LLP, New York (Carl W. Oberdier and Kellen G. Ressmeyer of counsel), for appellants. Venable LLP, New York (David N. Cinotti of counsel), for respondent.
Oberdier Ressmeyer LLP, New York (Carl W. Oberdier and Kellen G. Ressmeyer of counsel), for appellants. Venable LLP, New York (David N. Cinotti of counsel), for respondent.
, J.P., FRIEDMAN, ACOSTA, RENWICK, FREEDMAN, JJ.
Judgment, Supreme Court, New York County (Jeffery K. Oing, J.), entered April 17, 2012, in plaintiff's favor, unanimously reversed, on the law, without costs, and the judgment vacated. Appeal from order, same court and justice, entered on or about October 31, 2011, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Issues of fact preclude summary judgment in favor of either side in this dispute over plaintiff's entitlement to a commission for the procurement of a sublease of defendants' commercial premises. In support of their contention that they do not owe plaintiff a commission, defendants rely on the fact that plaintiff had an exclusive agency agreement with the sublessee ( see Julien J. Studley, Inc. v. New York News, 70 N.Y.2d 628, 629–630, 518 N.Y.S.2d 779, 512 N.E.2d 300 [1987] ). However, the sublease entered into by defendants acknowledged plaintiff's services as broker. Thus, an issue of fact exists whether defendants “impliedly” employed plaintiff as broker for this transaction ( see Gronich & Co. v. 649 Broadway Equities Co., 169 A.D.2d 600, 565 N.Y.S.2d 18 [1991] ). Plaintiff failed to demonstrate conclusively its implied employment by defendants since the evidence it submitted on this issue is controverted by defendant's evidence ( see Joseph P. Day Realty Corp. v. Chera, 308 A.D.2d 148, 153–154, 762 N.Y.S.2d 373 [2003] ).
CPLR 4547 does not bar evidence of a proposed agreement by which defendants would pay plaintiff's commission in exchange for indemnification against the claims of a prior broker since the proposal was not an offer to compromise a claim, but an attempt to reach a business agreement.