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Rwsp Realty, LLC Doing Business As Better Homes and Gardens Real Estate, Appellant v. John Kinney and Janice Kinney

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 5, 2012

RWSP REALTY, LLC DOING BUSINESS AS BETTER HOMES AND GARDENS REAL ESTATE, APPELLANT,
v.
JOHN KINNEY AND JANICE KINNEY, RESPONDENTS.

Appeal from an order of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered November 23, 2010.

RWSP Realty, LLC v Kinney

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2012

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The order granted defendants' motion to dismiss the action.

ORDERED that the order is affirmed, without costs.

Plaintiff brought this commercial claims action to recover the sum of $5,000 as the balance of a commission allegedly due it pursuant to a written real estate brokerage listing agreement. The agreement provided for a commission of six percent of the total sales price of a house, which was sold for $440,000. Plaintiff claims that the commission due at the closing should have been $26,400. A portion of this commission, in the sum of $8,800, was paid to the cooperating broker, which represented the buyer of the real property. At the closing, plaintiff was only paid $12,600, and asserts that it should have been paid $17,600.

Defendants moved to dismiss the action pursuant to CPLR 3211 (a) (1) and (7). Defendants asserted that they had received an invoice from plaintiff indicating that its commission, in the sum of $12,600, was to be paid at the closing. Defendants further asserted that they had made the $12,600 payment called for in plaintiff's invoice and that plaintiff had accepted this sum. In addition, defendants alleged that the HUD-1 statement indicated that plaintiff had been paid the sum of $12,600, and an invoice, signed at the closing by plaintiff's employee, reflecting "payment in full," establishes that the action should be dismissed pursuant to CPLR 3211 (a) (1).

In opposition to the motion, plaintiff argued that the commission reflected in its invoice was a clerical error which was not discovered until after the closing and that it had not prepared the HUD-1 statement. In addition, plaintiff asserted that the listing agreement had never been modified, nor was there a dispute between the parties regarding plaintiff's six percent commission until after defendants' payment of $12,600 had been made at the closing.

The City Court granted defendants' motion to dismiss.

In our view, substantial justice has been done between the parties according to the rules and principles of substantive law (UCCA 1804-A, 1807-A). A motion to dismiss based upon documentary evidence (CPLR 3211 [a] [1]) may be granted where the documentary evidence utterly refutes the allegations of the cause of action and conclusively establishes a defense as a matter of law (Goshen v Mutual Life Ins. Co., 98 NY2d 314, 316 [2002]). Here, the documents presented by defendants utterly refute plaintiff's cause of action in that they modified the listing agreement requiring defendants to pay plaintiff a six percent commission fee (see General Obligations Law § 5-1103). Moreover, we reject plaintiff's claim that the reduction of the commission fee was done without authority since the invoice was issued by plaintiff, and receipt of "payment in full" was acknowledged by plaintiff's representative at the closing. Accordingly, the order is affirmed.

Molia and Iannacci, JJ., concur. Nicolai, P.J., taking no part.

Decision Date: March 05, 2012

20120305

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