Opinion
No. 1542.
January 7, 2010.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 17, 2009, which, to the extent appealed from, denied plaintiffs motion for summary judgment with respect to the measure of damages to be awarded on its claim for the balance of an unpaid brokerage commission, unanimously affirmed, without costs.
Penn Proefriedt Schwarzfeld Schwartz, New York (Neal Schwarzfeld of counsel), for appellant.
Ganfer Shore, LLP, New York (Steven J. Shore of counsel), for respondent.
Before: Friedman, J.P., McGuire, Renwick, Richter and Manzanet-Daniels, JJ.
Plaintiff established its entitlement to the commission from the sale of apartment 6G at 1 York Street in Manhattan because the parties' sales agency agreement is a divisible contract consisting of several distinct and separate items ( see Chiarizia v Xtreme Rydz Custom Cycles, 43 AD3d 1353, 1354). Although there is no legitimate question as to the amount of the commission plaintiff should be paid for the apartment sale, plaintiff should be denied summary judgment because defendants have counterclaims for an amount equal to or greater than the amount demanded in the complaint ( see Stack Elec. v DiNardi Constr. Corp., 161 AD2d 416, 417-418; see also Pronti v Grigoriou, 49 AD3d 1135, citing Illinois McGraw Elec. Co. v John J. Walters, Inc., 7 NY2d 874, 876-877).