Moscou Faltischek, P.C., Uniondale, NY (E. Christopher Murray
of counsel), for appellant.
Saurborn & Mair, P.C., New York, NY (David N. Mair and
Goldberg & Rimberg PLLC [Israel Goldberg], of counsel),
E. CHAMBERS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, BETSY
DECISION & ORDER
from a judgment of the Supreme Court, Queens County (Orin R.
Kitzes, J.), entered September 14, 2015. The judgment,
insofar as appealed from, upon (1) an order of that court
dated December 23, 2009, granting that branch of the motion
of the defendants Nancy Galasso and Amber Associates of NYC,
LLC, which was pursuant to CPLR 3211(a) to dismiss the
amended complaint insofar as asserted against Amber
Associates of NYC, LLC, (2) an order of that court dated
September 3, 2014, inter alia, denying the plaintiff's
motion for summary judgment on the complaint in the principal
sum of $324, 493.48 against the defendants Nancy Galasso and
Amber Associates, Ltd., and (3) a decision of that court,
made after a nonjury trial, is in favor of the plaintiff
against only the defendant Amber Associates, Ltd., in the
principal sum of only $74, 701.45, and dismissed the amended
complaint insofar as asserted against the defendants Nancy
Galasso and Amber Associates of NYC, LLC.
that the judgment is affirmed insofar as appealed from, with
plaintiff commenced this action to recover a real estate
brokerage commission pursuant to an exclusive listing
agreement dated January 22, 2008 (hereinafter the ELA). The
ELA, which consisted of a pre-printed, one-page form with
handwritten changes made by the defendant Nancy Galasso,
provided, in relevant part, that "[t]he
undersigned" agreed to pay a commission to the plaintiff
in the event the subject property "is sold or
leased." The agreed commission was five percent of the
first three years' rent and two percent of the rent for
the balance of the term, with no commission payable on taxes.
The ELA contained two separate, pre-printed signature lines,
each marked "OWNER." Galasso handwrote the name of
the defendant Amber Associates, Ltd. (hereinafter Amber
Ltd.), on the first signature line, and signed her name on
the second one, directly underneath.
tenant was found for the subject property, and a sublease was
later entered into on April 1, 2009, between the defendant
Amber Associates of NYC, LLC (hereinafter Amber LLC), and
nonparty DZH Import & Export, Inc. (hereinafter DZH). The
sublease provided that the tax for the fiscal year in which
the sublease commenced was included as part of the rent, and
that any future tax increases would be payable by DZH to
Amber LLC as additional rent. The term of the sublease was 21
years, consisting of an initial 3-year period and an option
for the remaining 18 years, which was contingent upon the
renewal by a nonparty of the ground lease covering the
subject property as well as two adjacent lots.
LLC successfully moved pursuant to CPLR 3211(a) to dismiss
the complaint insofar as asserted against it, on the grounds
that it was not a party to the ELA and that the plaintiff had
otherwise failed to articulate any cause of action against
it. After a nonjury trial, the Supreme Court dismissed the
complaint insofar as asserted against Galasso, finding that
she had not entered into the ELA in her individual capacity,
but only on behalf of Amber Ltd., and entered judgment in
favor of the plaintiff and against Amber Ltd. in an amount
equivalent to five percent of the rent for the first three
years of the sublease, after deduction of real estate taxes.
The plaintiff appeals.
reviewing a determination made after a nonjury trial, the
power of the Appellate Division is as broad as that of the
trial court, and this Court may render the judgment it finds
warranted by the facts, bearing in mind that in a close case,
the trial judge had the advantage of seeing the
witnesses" (Split Rock Devs., LLC v Zartab,
Inc., 135 A.D.3d 845, 846; see Fernandez v State of
New York, 130 A.D.3d 566, 566).
to the plaintiff's contention, the evidence adduced at
trial supports the Supreme Court's finding that Galasso
did not sign the ELA in her personal capacity, but only on
behalf of Amber Ltd. The court's further finding that the
commission payable by Amber Ltd. to the plaintiff must be
calculated by deducting the amount of real estate taxes from
the rent payable by DZH is supported both by the unambiguous
language of the ELA as well as the evidence adduced at trial.
Moreover, the court's finding that the commission must be
calculated based only on the rent payable during the first
three years of the sublease is supported by proof that the
remaining 18-year period of the sublease was subject to a
contingency that was beyond Amber LLC's control.
plaintiff's remaining contentions are without merit.
we decline to disturb the Supreme Court's determination
(see Moezinia v Ashkenazi, 136 A.D.3d 988; Split
Rock Devs., LLC v Zartab, Inc., 135 A.D.3d at 846;
Law Offs. of Ronald V. DeCaprio v Boncoeur, 134