Opinion
2014-06-19
GEORGIA MALONE & COMPANY, INC., Plaintiff–Respondent, v. EXTELL DEVELOPMENT COMPANY, et al., Defendants–Appellants.
Schlam Stone & Dolan LLP, New York (Richard H. Dolan of counsel), for appellants. Claude Castro & Associates, PLLC, New York (Claude Castro of counsel), for respondent.
Schlam Stone & Dolan LLP, New York (Richard H. Dolan of counsel), for appellants.Claude Castro & Associates, PLLC, New York (Claude Castro of counsel), for respondent.
Judgment, Supreme Court, New York County (Joan M. Kenney, J.), entered January 16, 2014, in favor of plaintiff, unanimously affirmed, with costs.
Plaintiff's entitlement to a broker's commission is established by the real estate contract, which acknowledges plaintiff's performance of services and expressly promises that plaintiff will be paid by the sellers in the subject transaction ( Helmsley–Spear, Inc. v. New York Blood Ctr., 257 A.D.2d 64, 67, 687 N.Y.S.2d 353 [1st Dept.1999] ). However, the contract does not specify the amount of the commission, and there is no separate brokerage agreement. Thus, plaintiff is entitled to a commission that is “fair and reasonable,” i.e. “the customary rate in the community at the time when the services are rendered” ( Kaplon–Belo Assoc. v. Cheng, 258 A.D.2d 622, 622, 685 N.Y.S.2d 768 [2d Dept.1999] ). Plaintiff's expert opined, based on the specific transaction at issue, that plaintiff is entitled to a 2% commission. Defendants' vice president's affirmation, which states that brokerage commissions such as this are generally arrived at by negotiation, is conclusory, has no basis in the record, and fails to address plaintiff's expert's claims. We reject defendants' challenge, made for the first time on appeal, to plaintiff's expert's credentials ( see Guzman v 4030 Bronx Blvd. Assoc. L.L.C., 54 A.D.3d 42, 49, 861 N.Y.S.2d 298 [1st Dept.2008] ), as well as their contention that the motion court should not have considered the affidavit because plaintiff failed to disclose the expert ( see Downes v. American Monument Co., 283 A.D.2d 256, 724 N.Y.S.2d 610 [1st Dept.2001] ).
We have considered defendants' remaining contentions and find them unavailing. TOM, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, CLARK, JJ., concur.