GOODSTEIN PROPERTIES INC v. REGO

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Supreme Court, Appellate Division, Second Department, New York.

GOODSTEIN PROPERTIES, INC., et al., appellants, v. Neil REGO, respondent.

Decided: November 29, 1999

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, HOWARD MILLER and ROBERT W. SCHMIDT, JJ. Mark H. Solasz, New York, N.Y., for appellants. Esseks, Hefter & Angel, Riverhead, N.Y. (William Power Maloney of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract and for an accounting, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Floyd, J.), dated August 5, 1998, which denied their motion for partial summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered August 21, 1998, dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a] [1] ).

The plaintiffs, Andrew Goodstein Properties, Inc., and Andrew Goodstein, allege that in May 1992, Goodstein entered into a partnership and/or joint venture with the defendant Neil Rego for the purpose of purchasing real property known as The Racket Club.   In addition, the plaintiffs alleged that by letter dated June 5, 1992, Rego agreed to pay Goodstein a brokerage fee of $200,000 if Rego purchased the property for $640,000.   On February 3, 1993, the property was sold to Healthway Associates, a limited partnership in which Rego was a limited partner, for $1,639,162.   The plaintiffs commenced this action, inter alia, to recover damages for breach of contract and for an accounting.

 Rego made a prima facie showing that there was no agreement to share profits or losses, and thus that he and Goodstein were neither partners nor joint venturers (see, Steinbeck v. Gerosa, 4 N.Y.2d 302, 175 N.Y.S.2d 1, 151 N.E.2d 170).   Neither the complaint nor Goodstein's affidavits submitted on these motions for summary judgment alleged any agreement to share losses (see, Davella v. Nielsen, 208 A.D.2d 494, 616 N.Y.S.2d 800), and thus the plaintiffs failed to raise a triable issue of fact concerning that issue (see, Meltzer v. Danon, 188 A.D.2d 643, 591 N.Y.S.2d 850).

 The plaintiffs also failed to raise a triable issue of fact regarding their claim for a brokerage commission.   The brokerage agreement clearly and unambiguously provides that a commission would be payable if the property was purchased by the defendant for $640,000.   Although the plaintiffs contend that the purchase price of $640,000 was intended to be exclusive of additional amounts due for unpaid taxes and existing mortgage liens, and that the $1,639,162 purchase price included those amounts, “ ‘extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face’ ” (W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 566 N.E.2d 639, quoting Intercontinental Planning v. Daystrom, Inc., 24 N.Y.2d 372, 379, 300 N.Y.S.2d 817, 248 N.E.2d 576).   Further, Goodstein failed to present any evidence that he was the procuring cause of the sale (see, Greene v. Hellman, 51 N.Y.2d 197, 433 N.Y.S.2d 75, 412 N.E.2d 1301;  Lanstar Intl. Realty v. New York News, 206 A.D.2d 411, 614 N.Y.S.2d 438).

Accordingly, the Supreme Court properly granted summary judgment to the defendant dismissing the complaint.

MEMORANDUM BY THE COURT.

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