B & H Associates of NY, LLC, doing business as Prudential Douglas Elliman, appellant,
Patrick Fairley, et al., defendants, Ana Fairley, respondent. Index No. 600904/12
at Law, P.C., Center Moriches, NY (Megan Feinberg and Dennis
Valet of counsel), for appellant.
& Pullin LLP, Woodbury, NY (Allan L. Pullin of counsel),
PRISCILLA HALL, J.P., ROBERT J. MILLER, FRANCESCA E.
CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the plaintiff appeals, as limited by its brief,
from so much of an order of the Supreme Court, Nassau County
(Murphy, J.), entered February 27, 2015, as denied its motion
for summary judgment on the cause of action alleging breach
of contract against the defendant Ana Fairley.
that the order is reversed insofar as appealed from, on the
law, with costs, and the plaintiff's motion for summary
judgment on the cause of action alleging breach of contract
against the defendant Ana Fairley is granted.
April 1, 2011, the defendant Ana Fairley (hereinafter
Fairley) and her husband, the defendant Patrick Fairley
(hereinafter Fairley's husband), executed a "Listing
Agreement for Commercial/Industrial" in favor of the
plaintiff, granting it the exclusive right to sell commercial
property in Brooklyn for a 12-month term stated to expire on
April 1, 2012 (hereinafter the listing agreement). The
listing agreement provided that the "undersigned
owner" promised to pay the plaintiff a stated commission
in the event that the property is sold "by you, by me,
or by any other person or broker during the term of this
contract." Fairley and her husband each signed the
listing agreement on lines designated for "owner."
At the time of execution of the listing agreement, the
property was owned by the defendants Golden Horn Development,
LP, and DL Partners, LLC (hereinafter together the Golden
Horn defendants). Fairley's husband, but not Fairley, was
a member of both corporations. Prior to the expiration of the
listing agreement, the property was sold through a broker
other than the plaintiff to a nonparty for a purchase price
of $2, 035, 000. The plaintiff was not paid a commission for
plaintiff thereafter commenced this action against Fairley,
among others, inter alia, alleging breach of contract. After
obtaining default judgments against all defendants with the
exception of Fairley, the plaintiff moved for summary
judgment on the cause of action alleging breach of contract
against her. The Supreme Court, inter alia, denied the
plaintiff's motion, and the plaintiff appeals. We reverse
insofar as appealed from.
essential elements of a cause of action to recover damages
for breach of contract are the existence of a contract, the
plaintiff's performance pursuant to the contract, the
defendant's breach of its contractual obligations, and
damages resulting from the breach" (143 Bergen
Street, LLC v Ruderman, 144 A.D.3d 1002; see
Fairlane Fin. Corp. v Longspaugh, 144 A.D.3d 858). Here,
the plaintiff established its prima facie entitlement to
judgment as a matter of law on its breach of contract cause
of action by submitting a copy of the listing agreement
executed by Fairley, affidavits of its employees attesting to
its performance under the contract, and evidence that the
property was sold during the term provided for in the listing
agreement and that the plaintiff was not paid the stated
commission (see 143 Bergen Street, LLC v Ruderman,
144 A.D.3d 1002).
opposition, Fairley failed to raise a triable issue of fact
(see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
Contrary to Fairley's contention, parol evidence that she
intended to execute the listing agreement as an agent for the
corporate owners of the property is not admissible to defeat
the plaintiff's prima facie showing of entitlement to
judgment as a matter of law. Only where a contract, on its
face, is "ambiguous on the point with respect to whether
it is the individual contract of the agent or a contract made
for his principal" may parol evidence be admitted
"to show whose contract it was intended to be"
(Hernandez v Brookdale Mills, Inc., 194 A.D. 369,
380; see Greenfield v Philles Records, 98 N.Y.2d
562, 569; Legum v Russo, 133 A.D.3d 638, 639;
NRT N.Y., LLC v Harding, 131 A.D.3d 952, 953-954;
Restatement [Third] of Agency § 6.01). "Whether or
not a writing is ambiguous is a question of law to be
resolved by the courts" (W.W.W. Assoc. v
Giancontieri, 77 N.Y.2d 157, 162).
the listing agreement signed by Fairley is complete, clear,
and unambiguous on its face, and should be enforced according
to its terms-none of which indicates that Fairley executed
the agreement as an agent for the Golden Horn defendants or
for her husband (see NRT N.Y., LLC v Harding, 131
A.D.3d at 953-954; Hernandez v Brookdale Mills,
Inc., 194 A.D. at 380). The listing agreement provides
that the "undersigned owner" promised to pay the
plaintiff a stated commission in the event that the property
is sold "by you, by me, or by any other person or broker
during the term of this contract." Fairley executed the
listing agreement in the section designated for "owner,
" and did not identify herself therein as an agent or
state that she did not intend to be responsible for the
obligations that she assumed (see 211-54 Realty Corp. v
Schneider, 77 A.D.3d 915). Given that the listing
agreement on its face is unambiguous regarding the
parties' intent for Fairley, as "owner, " to be
bound by its terms, parol or extrinsic evidence that she was
acting as an agent is inadmissible to defeat the
plaintiff's prima facie showing (see NRT N.Y., LLC v
Harding, 131 A.D.3d at 953; 211-54 Realty Corp. v
Schneider, 77 A.D.3d 915). Moreover, Fairley's
actual nonownership of the property at the time that she
executed the listing agreement does not relieve her of the
obligations that she assumed thereunder (see Sholom &
Zuckerbrot Realty Corp. v Citibank, 205 A.D.2d 336, 338,
citing Kalmon Dolgin Affiliates v Estate of Nutman,
172 A.D.2d 917).
parties' remaining contentions need not be reached in
light of our determination.
J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.
DECISION & ORDER ON MOTION B & H Associates of NY,
LLC, doing business as Prudential Douglas Elliman, appellant,
v Patrick Fairley, et ...