LEWANDOWSKI & ASSOCIATES, WEST SENECA (KIMBERLY M. THRUN
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
& ROACH LLP, TONAWANDA (DAVID L. ROACH OF COUNSEL), FOR
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND
from an order of the Supreme Court, Erie County (Timothy J.
Walker, A.J.), entered April 28, 2016. The order denied the
motion of defendants for summary judgment dismissing the
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the motion is granted and
the complaint is dismissed.
In 2001, plaintiff entered into a broker commission agreement
(agreement) with defendant First Columbia Century-30, LLC
(First Columbia), which provided, inter alia, that plaintiff
would be paid a five percent commission upon occupancy
pursuant to a lease between First Columbia and a corporate
relative of defendant HealthNow New York, Inc. (HealthNow).
Insofar as relevant here, the agreement further stated that
First Columbia "agrees to pay to [plaintiff] an
additional commission of two and one half percent (2.5%) of
the gross rents payable during the renewed or extended lease
term" if the lessee "renews or extends the term of
the lease." Defendants entered into a lease of an entire
building in November 2001 (hereafter, 2001 lease), and
plaintiff was paid a commission pursuant to the agreement.
Defendants entered into a lease of part of the same building
in 2011 (hereafter, 2011 lease), and plaintiff sought a
commission pursuant to the agreement. When defendants
declined to pay the commission, plaintiff commenced this
action for breach of contract and related relief. Supreme
Court originally granted defendants' motion to dismiss
the complaint, but this Court reversed that order on appeal
(Baumann Realtors, Inc. v First Columbia Century-30,
LLC, 113 A.D.3d 1091). Defendants now appeal from an
order denying their motion for summary judgment dismissing
the complaint. We agree with defendants that the court erred
in denying their motion.
prior appeal, we reviewed the motion to dismiss under the
well established standard for such motions, i.e., " [o]n
a motion to dismiss pursuant to CPLR 3211, pleadings are to
be liberally construed... The court is to accept the facts as
alleged in the [pleading] as true... [and] accord [the
proponent of the pleading] the benefit of every possible
favorable inference' " (id. at 1092). In
that appeal, we concluded that "the documentary evidence
does not conclusively establish as a matter of law that the
2011 lease was a new lease, as opposed to a renewal or
extension of the 2001 lease" (id.). We further
concluded that plaintiff was entitled to discovery on the
issue whether the 2011 lease was a renewal or extension of
the 2001 lease (see id. at 1092-1093).
appeal, however, we review the motion pursuant to the
"well settled [standard requiring] that the proponent of
a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering
sufficient evidence to demonstrate the absence of any
material issues of fact' " (O'Brien v Port
Auth. of N.Y. & N.J., 29 N.Y.3d 27, 36-37, quoting
Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). In
view of the current procedural posture of this case, our
determination is now based upon, among other things, the
additional evidence submitted by the parties after full
discovery regarding the circumstances surrounding
defendants' determination to enter into the 2011 lease.
The law of the case doctrine therefore does not apply,
because "[o]ur holding in relation to the prior motion
to dismiss was based on the facts and law presented by the
parties in that procedural posture, and no more"
(191 Chrystie LLC v Ledoux, 82 A.D.3d 681, 682;
see Moses v Savedoff, 96 A.D.3d 466, 468).
well established that, if a commission agreement provides
that a broker will be entitled to a commission upon a renewal
of a lease, then the terms of that agreement control, but no
commission is due if "[t]he new lease itself showed that
it was executed, not as the result of the exercise of the
option by the tenant, but of an entirely new letting, upon
different terms; and it was not, therefore, the result of any
of the plaintiff's efforts to procure a tenant that the
new lease was executed" (Allwin Realty Co. v
Barth, 161 A.D. 568, 572). Thus, "New York law
provides that before the lessor is obligated to pay [ ]
commissions, the renewal must be for the same term and the
same rent as the original lease, or the new lease must have
been the result of services performed by the broker'
" (John F. Dillon & Co. LLC v Foremost Maritime
Corp., 2004 WL 1396180, *9 [SD NY 2004], quoting
Stern v Satra Corp., 539 F.2d 1305, 1310). In order
to establish that a subsequent lease of the same premises
between the same parties is a renewal or extension of an
earlier lease for which the broker of the original lease is
entitled to recover a commission, rather than a new lease,
"there must be proof (1) of a special agreement between
the broker and the lessor...; (2) [of] compliance with [the
statute of frauds]; (3) that the renewal was for the same
term and rent...; [and] (4) in the event of failure to prove
(3), there must be proof that the [subsequent] lease was the
result of services performed by the broker and for which he
should be entitled to recover" (Mitchnik v
Brennan, 159 Misc. 287, 291). "Mere amendments to a
preexisting tenant's lease, that do not materially affect
the rights of the parties under it or otherwise work to annul
the prior agreement, do not constitute a new agreement"
(Ernie Otto Corp. v Inland Southeast Thompson Monticello,
LLC, 91 A.D.3d 1155, 1157, lv denied 19 N.Y.3d
802; see e.g. The Wharton Assoc., Inc. v Continental
Indus. Capital LLC, 137 A.D.3d 1753, 1753-1754).
we agree with defendants that they met their burden on their
motion by establishing that the 2011 lease was a new lease,
rather than a renewal of the 2001 lease. In support of their
motion, defendants submitted evidence establishing that,
under the 2011 lease, HealthNow was leasing only part of the
subject building, rather than the whole building as called
for under the 2001 lease. In addition, the 2011 lease called
for First Columbia to make structural changes to the building
to accommodate HealthNow's changing needs, and to install
a backup generator at a cost in excess of $300, 000.
Furthermore, the rent was higher in the 2011 lease, it was
not calculated in accordance with the terms for a renewal as
provided in the 2001 lease, and the 2011 lease was for a term
of seven years, whereas the 2001 lease called for a renewal
term of five years. Finally, defendants established that the
2011 lease was not the result of any brokerage services
performed by plaintiff.
opposition, plaintiff failed to raise a triable issue of fact
(see generally Alvarez, 68 N.Y.2d at 324). We have
considered plaintiff's further contentions and conclude
that they do not require a different result. Consequently, ...