Peppermill Realty, Inc. v. Vahab

In three related actions, inter alia, for recovery of a real estate broker’s commission, Peppermill Realty, Inc., appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Doyle, J.), entered March 23, 1987, which, upon granting the cross motion of the defendant Reza Vahab for partial summary judgment, awarded him partial summary judgment in the principal sum of $10,000 upon his claim for a broker’s commission which was originally filed in the Civil Court of the City of New York, New York County. 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 Pepper-mill that Vahab may have earned a second commission or 555 somehow profited by a subsequent assignment of the purchaser’s interest were not established by evidentiary facts. Pepper-mill’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 NY2d 56, 63; Bank for Sav. v Rellim Constr. Co., 285 NY 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 AD2d 911; Emblem v Juras, 112 AD2d 134; Mastronardi v Mitchell, 109 AD2d 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.