Harvard Associates, Ltd. v. Hayt

—In an action, inter alia, to recover damages for breach of contract, the defendant Hayt, Hayt & Landau appeals from so much of a judgment of the Supreme Court, Nassau County (DeMaro, J.), entered February 29, 1996, as, upon an order of the same court dated October 12,1995, which, inter alia, denied that branch of its cross motion which was for summary judgment dismissing the first cause of action in the complaint, severed and continued the first cause of action. Ordered that the judgment is affirmed insofar as appealed from, with costs. The Supreme Court properly denied summary judgment as to the first cause of action. The record demonstrates the existence of a factual issue as to whether or not the respondent, a real estate brokerage, actually earned a commission as the procuring cause of the appellant’s renegotiated lease (see generally, Greene v Hellman, 51 NY2d 197, 206; cf., Hampton Realty v Conklin, 220 AD2d 385; see also, Rotuba Extruders v Ceppos, 46 NY2d 223; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). However, we disagree with so much of the determination of the Supreme Court as found the "protect and preserve” provision in the brokerage agreement between the respondent and the appellant to be ambiguous. That provision clearly obligates the appellant to protect and preserve the respondent’s right to recover any earned commission from the owner. Bracken, J. P., Pizzuto, Florio and McGinity, JJ., concur.