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Daniel Gale Assoc. v. Hillcrest Estates

Appellate Division of the Supreme Court of New York, Second Department
May 7, 2001
283 A.D.2d 386 (N.Y. App. Div. 2001)

Opinion

Argued April 6, 2001.

May 7, 2001.

In an action to recover damages for breach of a brokerage agreement, the defendant appeals from (1) so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 16, 2000, as granted the plaintiff's motion for summary judgment on its first cause of action, and (2) a judgment of the same court, entered December 5, 2000, which is in favor of the plaintiff and against it in the principal sum of $79,375.

Meyer, Suozzi, English Klein, P.C., Mineola, N.Y. (Brian Michael Seltzer and Michael A. Ciaffa of counsel), for appellant.

Payne, Wood Littlejohn, Melville, N.Y. (John P. McEntee and Walter J. Johnson of counsel), for respondent.

Before: BRACKEN, P.J., FLORIO, SCHMIDT and ADAMS, JJ.


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 plaintiff 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, 248). The issues raised on the 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 plaintiff established that pursuant to a listing agreement dated November 12, 1999, as extended by written agreement dated January 10, 2000, and as subject to a co-brokerage agreement dated January 27, 2000, it was entitled to receive the sum of $79,375, representing 1.25% of the purchase price of certain real property. These same documents establish that another broker, Piping Rock Associates, Inc. (hereinafter Piping Rock), was entitled to the sum of $158,750, and that a third broker, Prudential Long Island Realty, Inc. (hereinafter Prudential), was entitled to the sum of $79,375, representing 2.5% and 1.25% of the purchase price, respectively. The appellant paid the commissions to Piping Rock and Prudential, but refused to pay the plaintiff.

The Supreme Court granted the plaintiff's motion for summary judgment in its first cause of action to recover the sum of $79,375. We affirm.

The appellant contends that it is not bound to pay the commission to the plaintiff because the listing agreement with the plaintiff expired effective January 11, 2000, and that it never agreed to extend the listing.

The appellant acknowledges that its principal, Irwin Stillman, signed the extension agreement in question. However, the appellant asserts that Stillman signed the extension without reading it, and in reliance on certain misrepresentations made by the plaintiff's agent as to its content. In seeking to excuse Mr. Stillman's failure to read the agreement, the appellant claims that Mr. Stillman did not have his glasses. Mr. Stillman is a sophisticated businessman who was involved in the sale of a property worth several million dollars. The appellant failed to raise an issue of fact as to whether the momentary unavailability of his glasses justified his failure to read the document presented to him for signature.

In the case of Whipple v. Brown Bros. ( 225 N.Y. 237), relied on by the appellant, the plaintiff signed a contract without reading it because he did not have his glasses. In Whipple the Court of Appeals had to determine whether the plaintiff, who did not assert a cause of action based on fraud, could properly sue based on a prior oral contract, or whether, instead, the plaintiff was limited to a suit in equity for reformation of the written contract. The Court of Appeals does not appear to have considered the precise question presented in this case: that is, whether a sophisticated businessman may avoid a contract where he signs a document without first locating his glasses to enable him to read it. Furthermore, the appellant's payment of the commissions to Prudential and Piping Rock in the amounts stated above constitutes an effective ratification of the very extension agreement which it now, at least insofar as the plaintiff is concerned, seeks to disavow (see, Lindenwood Dev. Corp. v. Levine, 178 A.D.2d 633).

Under the circumstances, the appellant failed to raise a triable issue of fact to bar application of the general rule that "[a] party who signs a document without any valid excuse for having failed to read it is `conclusively bound' by its terms" (Sofio v. Hughes, 162 A.D.2d 518, 519, quoting Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 11; see also, Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 617, affd 66 N.Y.2d 701; Albany Med. Ctr. Hosp. v. Armlin, 146 A.D.2d 866, 867; Boucher v. Eastern Sav. Bank, 145 A.D.2d 520; Matter of Barone [M K Realty Co.], 143 A.D.2d 1008).

The appellant's remaining contentions are without merit.


Summaries of

Daniel Gale Assoc. v. Hillcrest Estates

Appellate Division of the Supreme Court of New York, Second Department
May 7, 2001
283 A.D.2d 386 (N.Y. App. Div. 2001)
Case details for

Daniel Gale Assoc. v. Hillcrest Estates

Case Details

Full title:DANIEL GALE ASSOCIATES, INC., RESPONDENT, v. HILLCREST ESTATES, LTD.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 7, 2001

Citations

283 A.D.2d 386 (N.Y. App. Div. 2001)
724 N.Y.S.2d 201

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