JOHN NOTHNAGLE INC v. CHIARIELLO (2009)

Peter G. Chiariello and Elmer's Brighton Garage, Inc. (defendants) appeal from a judgment awarding plaintiff, a licensed real estate broker, damages and attorneys' fees for defendants' breach of a listing contract with plaintiff.   Contrary to the contention of defendants, Supreme Court properly granted that part of plaintiff's motion for summary judgment on the breach of contract action against them.   Absent an express agreement in the listing contract to the contrary, “the broker's right to a commission is not contingent upon performance of the underlying real estate contract” (Coldwell Banker Vil. Green Realty v. Pillsworth, 32 A.D.3d 568, 569, 818 N.Y.S.2d 868;  see also Norma Reynolds Realty v. Wilczewski, 160 A.D.2d 787, 788, 553 N.Y.S.2d 829, lv. dismissed 76 N.Y.2d 889, 561 N.Y.S.2d 550, 562 N.E.2d 875, rearg.denied 76 N.Y.2d 983, 563 N.Y.S.2d 771, 565 N.E.2d 520;  Felleman v. Von Luckner, 234 App.Div. 787, 253 N.Y.S. 567).   Here, the listing contract contains no such express agreement (cf. Liggett Realtors, Inc. v. Gresham, 38 A.D.3d 214, 831 N.Y.S.2d 59).   Indeed, the listing contract, when “read as a whole, and every part ․ interpreted with reference to the whole,” indicates that the conditions under which plaintiff was entitled to receive a commission are separate and distinct from the transfer of title at closing (Matter of Westmoreland Coal Co. v. Entech, Inc., 100 N.Y.2d 352, 358, 763 N.Y.S.2d 525, 794 N.E.2d 667 [internal quotation marks omitted] ).   Further, plaintiff is entitled to attorneys' fees and costs associated with defending this appeal pursuant to the terms of the listing contract, and we remit the matter to Supreme Court to determine the amount of reasonable attorneys' fees incurred (see Duell v. Condon, 200 A.D.2d 549, 606 N.Y.S.2d 690, affd. 84 N.Y.2d 773, 622 N.Y.S.2d 891, 647 N.E.2d 96;  Miller v. Marra Bros. Motor Co., 185 A.D.2d 663, 585 N.Y.S.2d 655, lv. dismissed 80 N.Y.2d 972, 591 N.Y.S.2d 140, 605 N.E.2d 876).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed with costs, plaintiff is awarded attorneys' fees on appeal and the matter is remitted to Supreme Court, Monroe County, for further proceedings.

MEMORANDUM: