Opinion
November 2, 1967
Order entered April 24, 1967, granting plaintiff's motion for summary judgment to the extent of directing an assessment of damages and denying defendant's cross motion to dismiss the complaint, affirmed, without costs and without disbursements. The proof revealed that the defendant gave to the plaintiff's salesman a letter advising of his desire to sell his property to a prospective purchaser, the Consul General of the Republic of Colombia, first brought to the defendant's attention by the plaintiff. The following day the plaintiff sent defendant a letter, advising of its authority to act for the Consul General and enclosing a copy of their authorization and further stating that a full commission was payable to the plaintiff. Defendant denied receiving this letter. The next day the defendant delivered to the Consul General another letter modifying the terms of his first letter. Some eight days later the defendant gave an option to the Consul General and the agreement was witnessed by the plaintiff's salesman. The option was exercised. A formal contract of sale was signed, which defendant was unable to locate, but it was admitted that it was stated therein that the plaintiff was the broker. Subsequently, at defendant's request, the contract of sale was modified so as to permit the defendant to convey the property to a third party who would, in turn, convey pursuant to the contract. Title passed to the Consul General. Upon the foregoing facts the Special Term quite properly held that the plaintiff was entitled to summary judgment, reserving for an assessment the amount of its recovery. The defendant's denial that he had retained plaintiff and his assertion of an oral understanding with a third-party broker are of no avail to him in the face of his acceptance of plaintiff's services and his admission that plaintiff was the procuring cause of the sale. The evidentiary burden upon the defendant here was not met by assertions which might tend to disclose the existence of factual issues. In the circumstances of this case it was incumbent upon the defendant to establish that such factual issues were genuine, bona fide and substantial. "A trial may be desirable in every case, but the practicalities of frivolous litigation and court congestion mandate a summary procedure upon the ascertaining that there is no cause of action [or no defense]. `The fear of depriving a party of his day in court because he says, in his affidavit, things that, if true, would present a question of fact, should not permit him to evade the actualities by merely making these statements.' (Paston, Summary Judgment in New York [1960 Cum. Supp.], p. xviii.)" ( Senrow Concessions v. Shelton Props., 10 N.Y.2d 320, 326.)
I would modify the order appealed from to deny plaintiff's motion for summary judgment. The affidavits and proofs show triable issues. The plaintiff's complaint alleges that the "defendant employed plaintiff as a real estate broker to obtain a purchaser for the premises and agreed that if plaintiff was successful in procuring a purchaser, defendant would pay plaintiff a commission pursuant to the rates of the Real Estate Board of New York, Inc." The defendant denies this allegation. The defendant in his affidavit denies that he retained the plaintiff as a broker and denies that he had any agreement with the plaintiff concerning the payment of commissions. It appears from the defendant's affidavit that the defendant had employed a third party, Helmsley-Spear, Inc., as the broker to sell the property at a specified rate of commission and that the plaintiff was so informed. The affidavits of the defendant and of a salesman employed by Helmsley-Spear tend to establish that the plaintiff understood that Helmsley-Spear was the broker in connection with any sale, and that the plaintiff should look to Helmsley-Spear for its commissions. It is true that the plaintiff's salesman denies that he ever received the information concerning the property from Helmsley-Spear or that he talked with Helmsley-Spear concerning the sale; also, that the salesman further alleges that the defendant at all times knew that he (the salesman) represented the plaintiff directly and was dealt with accordingly. These denials and allegations, however, merely point up the issues of fact. There is in the record an extract from the examination before trial of the defendant referring to a provision in the contract of sale stating that the plaintiff was the broker. The contract of sale itself, however, is not contained in the record, and the defendant's testimony with respect thereto was merely that the contract provided "that as far as [the purchasers] are concerned" the plaintiff was the broker. This testimony of the defendant is not inconsistent with his position that the plaintiff understood that Helmsley-Spear was the broker.