Summary
In George Tsunis Real Estate, Inc. v. Benedict, 116 AD3d 1002 (2d Dept 2014), an email acknowledged the plaintiff's entitlement to a brokerage commission and demonstrated the defendants' intent to pay it, thus restarting the statute of limitations.
Summary of this case from Gizzi v. GizziOpinion
2014-04-30
GEORGE TSUNIS REAL ESTATE, INC., respondent, v. George W. BENEDICT, et al., appellants.
Rich, Intelisano & Katz, LLP, New York, N.Y. (Daniel E. Katz and Yasmin R. Saeed of counsel), for appellants. Pinks, Arbeit & Nemeth, Hauppauge, N.Y. (Robert S. Arbeit of counsel), for respondent.
Rich, Intelisano & Katz, LLP, New York, N.Y. (Daniel E. Katz and Yasmin R. Saeed of counsel), for appellants. Pinks, Arbeit & Nemeth, Hauppauge, N.Y. (Robert S. Arbeit of counsel), for respondent.
In an action to recover a real estate brokerage commission, the defendants appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated July 6, 2012, which, in effect, denied the plaintiff's motion for summary judgment on the issue of liability, and denied their cross motion for summary judgment dismissing the amended complaint and to preclude the plaintiff from offering certain evidence at the time of trial.
ORDERED that the appeal from so much of the order as, in effect, denied the plaintiff's motion for summary judgment on the issue of liability, and from so much of the order as denied that branch of the defendants' cross motion which was to preclude the plaintiff from offering certain evidence at the time of trial, is dismissed; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from so much of the order as, in effect, denied the plaintiff's motion for summary judgment on the issue of liability must be dismissed, as the defendants are not aggrieved by that portion of the order ( seeCPLR 5511). Contrary to the defendants' contention, the order did not grant the plaintiff's motion for summary judgment on the issue of liability, but determined that, although the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law, the defendants raised a triable issue of fact as to whether the action is barred by the applicable statute of limitations. To the extent the defendants seek to appeal from the finding that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law, “[m]erely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal” ( Cholowsky v. Civiletti, 69 A.D.3d 110, 116, 887 N.Y.S.2d 592, quoting Castaldi v. 39 Winfield Assoc., LLC, 22 A.D.3d 780, 781, 803 N.Y.S.2d 716;see also Caffrey v. Morse Diesel Intl., 279 A.D.2d 494, 719 N.Y.S.2d 597).
The appeal from so much of the order as denied that branch of the defendants' cross motion which was to preclude the plaintiff from offering certain evidence at the time of trial must be dismissed because it concerns an evidentiary ruling, which, even when made in advance of a hearing or trial on motion papers, is not appealable as of right or by permission ( seeCPLR 5701; Matter of Lyons v. Lyons, 86 A.D.3d 569, 570, 926 N.Y.S.2d 834;Cortez v. Northeast Realty Holdings, LLC, 78 A.D.3d 754, 757, 911 N.Y.S.2d 151).
The Supreme Court properly denied that branch of the defendants' cross motion which was for summary judgment dismissing the complaint as time-barred. The defendants made a prima facie showing that the applicable six-year statute of limitations expired before the plaintiff commenced this action ( see CPLR 213; Fade v. Pugliani/Fade, 8 A.D.3d 612, 613, 779 N.Y.S.2d 568). In opposition, however, the plaintiff raised a triable issue of fact as to whether an email message, purportedly sent by the defendant George W. Benedict on July 16, 2008, acknowledged the plaintiff's entitlement to a brokerage commission and demonstrated the defendants' intent to pay it, thus restarting the statute of limitations ( see General Obligations Law § 17–101; Fade v. Pugliani/Fade, 8 A.D.3d at 613, 779 N.Y.S.2d 568). “ ‘Whether a purported acknowledgment is sufficient to restart the running of a period of limitations depends on the circumstances of the individual case’ ” ( Fade v. Pugliani/Fade, 8 A.D.3d at 613, 779 N.Y.S.2d 568, quoting Estate of Vengroski v. Garden Inn, 114 A.D.2d 927, 928, 495 N.Y.S.2d 200). Here, a trial is necessary to resolve this issue. DILLON, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.