Opinion
July 3, 1989
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order and judgment is affirmed, with costs.
Contrary to the contentions of Peppermill Realty, Inc. (hereinafter Peppermill) the Supreme Court properly granted Reza Vahab's motion for partial summary judgment on the $10,000 claim originally filed in the Civil Court of the City of New York, New York County, as no genuine issue of material fact exists as to his entitlement to one half of the commission earned on the sale of the property. The contentions by Peppermill that Vahab may have earned a second commission or somehow profited by a subsequent assignment of the purchaser's interest were not established by evidentiary facts. Peppermill's opposition to the cross motion consisted of nothing more than surmise, suspicion and conjecture, which will not defeat a motion for summary judgment (see, Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 63; Bank for Sav. v Rellim Constr. Co., 285 N.Y. 708).
Moreover, Peppermill's claims that Vahab breached his fiduciary duties were not raised before the Supreme Court and accordingly are not properly raised on appeal (see, Matter of Warne v Warne, 120 A.D.2d 911; Emblem v Juras, 112 A.D.2d 134; Mastronardi v Mitchell, 109 A.D.2d 825). In any event, we find them to be without merit (see, Restatement [Second] of Agency § 390). Mangano, J.P., Brown, Kunzeman and Kooper, JJ., concur.