Opinion
2012-02-21
DYSAL, INC., doing business as Corporate Realty Consultants, respondent, v. HUB PROPERTIES TRUST, et al., appellants.
The Shapiro Firm, LLP, New York, N.Y. (Jonathan S. Shapiro of counsel), for appellants. Germano & Cahill, P.C., Holbrook, N.Y. (Marie E. Knapp of counsel), for respondent.
The Shapiro Firm, LLP, New York, N.Y. (Jonathan S. Shapiro of counsel), for appellants. Germano & Cahill, P.C., Holbrook, N.Y. (Marie E. Knapp of counsel), for respondent.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover a real estate broker's commission, the defendants appeal from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated September 22, 2011, which denied their motion for summary judgment dismissing the complaint, granted the plaintiff's cross motion, in effect, for summary judgment on the issue of liability as against the defendant Hub Properties Trust, and set the matter down for a hearing to determine the amount of the commission due.
ORDERED that the order is affirmed, with costs.
“ ‘The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent’ ” ( Willsey v. Gjuraj, 65 A.D.3d 1228, 1229–1230, 885 N.Y.S.2d 528, quoting Franklin Apt. Assoc., Inc. v. Westbrook Tenants Corp., 43 A.D.3d 860, 861, 841 N.Y.S.2d 673 [some internal quotation marks omitted]; see Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166). “ ‘When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations' ” ( Willsey v. Gjuraj, 65 A.D.3d at 1230, 885 N.Y.S.2d 528, quoting Franklin Apt. Assoc., Inc. v. Westbrook Tenants Corp., 43 A.D.3d at 861, 841 N.Y.S.2d 673; see Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166; Correnti v. Allstate Props., LLC, 38 A.D.3d 588, 590, 832 N.Y.S.2d 594). “ ‘Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' ” ( Willsey v. Gjuraj, 65 A.D.3d at 1230, 885 N.Y.S.2d 528, quoting Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166; see W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639). “ ‘[C]ourts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing’ ” ( Willsey v. Gjuraj, 65 A.D.3d at 1230, 885 N.Y.S.2d 528, quoting Henrich v. Phazar Antenna Corp., 33 A.D.3d 864, 867, 827 N.Y.S.2d 58 [some internal quotation marks omitted]; see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475, 775 N.Y.S.2d 765, 807 N.E.2d 876). “Therefore, a court ‘will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms' ” ( Willsey v. Gjuraj, 65 A.D.3d at 1230, 885 N.Y.S.2d 528, quoting Henrich v. Phazar Antenna Corp., 33 A.D.3d at 867, 827 N.Y.S.2d 58 [some internal quotation marks omitted]; see Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199, 738 N.Y.S.2d 658, 764 N.E.2d 958).
Here, the Supreme Court correctly concluded that, pursuant to the express terms of, among other things, an agreement for the assignment and assumption of leases entered into between the defendant Hub Properties Trust (hereinafter Hub) and its predecessor in interest, Perinton, LLC (hereinafter Perinton), in connection with Hub's purchase of certain real property from Perinton, and a commission agreement entered into between Perinton and the plaintiff, Hub assumed the obligation to pay the plaintiff's commission upon the happening of the “Lease Event.” The “Lease Event” occurred when the tenant remained in possession of the subject leased premises beyond the termination date set forth in the first amendment to the subject lease. Contrary to the defendants' contention, pursuant to the agreement for the assignment and assumption of leases and the commission agreement, Hub affirmatively assumed the obligation to pay the plaintiff its commission ( cf. Longley–Jones Assoc. v. Ircon Realty Co., 67 N.Y.2d 346, 502 N.Y.S.2d 706, 493 N.E.2d 930). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint, granted the plaintiff's cross motion, in effect, for summary judgment on the issue of liability as against Hub, and set the matter down for a hearing to determine the amount of the commission due.
In light of our determination, we need not reach the parties' remaining contentions.