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Douglas Elliman LLC v. 21-45 44th Drive LLC

Supreme Court, New York

April 17, 2013

DOUGLAS ELLIMAN LLC, Plaintiff,
v.
21-45 44th DRIVE LLC and THE INDUSTRY LIC CONDOMINIUM as successor in interest, Defendants. Index No. 112636/2011 Motion Seq. No. 01

Unpublished Opinion

Motion Date: 07/13/12

DEBRA A. JAMES JUSTICE

The following papers, numbered 1 to 3 were read on this motion for summary judgment.

PAPERS NUMBERED
Notice of Motion/Order to Show Cause -Affidavits -Exhibits 1-------------
Answering Affidavits - Exhibits ' .—---------1-------------- Replying
Affidavits - Exhibits _ I------------5-------------

Cross-Motion: Upon the foregoing papers.

The court shall deny defendants' motion for summary judgment dismissing the complaint and grant defendants' motion seeking a declaration of the parties' rights under Section 15(b) of an Exclusive Sales Agreement dated May 9, 2006 (the "Agreement").

This dispute between the plaintiff real estate brokerage firm and defendant condominium concerns the commissions due and owing as well as reimbursable advances payable under an exclusive brokerage sales agreement between the parties dated May 9, 2006 (the "Agreement"). In relevant part the Agreement provided that during the one-year term of the Agreement the plaintiff would market and sell residential units in the condominium and the condominium agreed to provide the plaintiff with space for use as an on-site sales office. As to the allocation of the expense for this office, Section 15 (b) of the parties' agreement provides

DE will be responsible to select the personnel to staff the Sales Office and shall be responsible for all the costs of staffing the Sales Office. However, Owner shall advance the costs of any salaried personnel (salary plus benefits) up to a maximum $15, 000 at the Sales Office on a monthly basis. Such advances shall be fully reimbursed by DE from the Commission paid by Owner at the closing, at a rate of twenty percent (20%) percent [sic] of DE's portion (particularly in the case of when a co-broker is involved) of each Commission payable to DE until Owner is fully reimbursed.

It is undisputed that based upon the clause above defendants made advances to the plaintiff.

Defendants are withholding commission payments to the plaintiff on the grounds that plaintiff breached the Agreement by failing to perform thereunder and that no commission is due plaintiff until the advances defendants made for the costs of the sales office are recouped in full. Plaintiff argues that it is due all earned ...


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