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LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined that defendant out-of-possession landlord’s motion for summary judgment in this parking lot slip and fall case was properly granted:

“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or course of conduct'” … . A landlord who has transferred possession and control generally is not liable for injuries caused by dangerous conditions on the property … .

In support of its motion for summary judgment dismissing the complaint, the defendant submitted a copy of the lease between it and Cold Spring Hills. The lease provided that the maintenance of the entire premises, including the parking lot, was the responsibility of Cold Spring Hills. The evidence submitted in support of the motion shows that the defendant was an out-of-possession landlord and that Cold Spring Hills performed the maintenance of the entire premises. Vicchiarelli v Cold Spring Hills Realty Co., LLC, 2018 NY Slip Op 05619, Second Dept 8-1-18

NEGLIGENCE (LANDLORD-TENANT, SLIP AND FALL, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/OUT-OF-POSSESSION LANDLORD (NEGLIGENCE, SLIP AND FALL, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/LEASE (NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))

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ALTHOUGH THE LACK OF STANDING DEFENSE TO A FORECLOSURE ACTION IS WAIVED IF NOT ASSERTED IN THE ANSWER OR A PRE-ANSWER MOTION TO DISMISS, IT MAY BE ADDED TO AN ANSWER AMENDED BY LEAVE OF COURT (SECOND DEPT).

The Second Department, in the context of a foreclosure action, determined that, although the lack of standing defense is waived if not asserted in the answer or a pre-answer motion to dismiss, the defense can be added in an answer amended by leave of court:

“[A]n argument that a plaintiff lacks standing, if not asserted in the defendant’s answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211(e)” … . “Defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting from the delay, and is not palpably insufficient or patently devoid of merit”… . “The decision of whether to allow an amendment is committed almost entirely to the [motion] court’s discretion'” … .

Here, in opposition to that branch of the defendant’s motion which was for leave to amend his answer to add the affirmative defense of lack of standing, the plaintiff failed to demonstrate the existence of any prejudice or surprise that would result from the amendment, or that the proposed affirmative defense was palpably insufficient or patently devoid of merit … . U.S. Bank Trust, N.A. v Carter, 2018 NY Slip Op 05618, Second Dept 8-1-18

 

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CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff in this slip and fall case was not entitled to a default judgment and defendant’s cross motion to compel acceptance of a late answer was properly granted:

On July 28, 2015, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell down a stairway leading to the basement of premises owned by the defendant. According to an affidavit of service, the defendant was served with the summons and complaint on September 1, 2015, when it was delivered to a person of suitable age and discretion at his residence. The affidavit of service also provided that the summons and complaint were mailed to the defendant’s residence on September 2, 2015. On or about March 3, 2016, the defendant served a late answer, which the plaintiff rejected as untimely. The plaintiff subsequently moved pursuant to CPLR 3215(f) for leave to enter a default judgment against the defendant on the issue of liability. The defendant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3012(d) to compel the plaintiff to accept his late answer. The defendant argued that he was not properly served, that his delay in answering the complaint was brief, that he had a potentially meritorious defense, and that the case should proceed on the merits. Stavola v Bodd. 2018 NY Slip Op 05617, Second Dept 8-1-18

CIVIL PROCEDURE (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/CPLR 3215 (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/CPLR 3212 (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/ANSWER (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))

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PLAINTIFF WAS A SPECIAL EMPLOYEE, HIS ONLY AVAILABLE REMEDY FOR HIS ON THE JOB INJURY WAS WORKERS’ COMPENSATION (SECOND DEPT).

The Second Department determined defendant Mid-Queens demonstrated that plaintiff maintenance worker, although employed by KGA, was a special employee of Mid-Queens. Therefore plaintiff’s only remedy for his injury was Workers’ Compensation:

“Workers’ Compensation Law §§ 11 and 29(6) restrict an employee from suing his or her employer or coemployee for an accidental injury sustained in the course of employment” … . “[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer’s responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits” … . “Although no one factor is determinative, a significant and weighty feature in deciding whether a special employment relationship exists is who controls and directs the manner, details and ultimate result of the employee’s work—in other words, who determines all essential, locational and commonly recognizable components of the [employee’s] work relationship” … . “Other factors include who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business” … .

Here, the moving defendants made a prima facie showing that Mid-Queens was entitled to summary judgment on the ground that it was the injured plaintiff’s special employer. The evidence submitted by the moving defendants established that Mid-Queens controlled and directed the manner, details, and ultimate result of the injured plaintiff’s work, the injured plaintiff’s work was done in furtherance of Mid-Queens’ business, and Mid-Queens had the right to discharge the injured plaintiff … . Spasic v Cammeby’s Mgt. Co., 2018 NY Slip Op 05616, Second Dept 8-1-18

WORKERS’ COMPENSATION (PLAINTIFF WAS A SPECIAL EMPLOYEE, HIS ONLY AVAILABLE REMEDY FOR HIS ON THE JOB INJURY WAS WORKERS’ COMPENSATION (SECOND DEPT))/SPECIAL EMPLOYEE (WORKERS’ COMPENSATION, PLAINTIFF WAS A SPECIAL EMPLOYEE, HIS ONLY AVAILABLE REMEDY FOR HIS ON THE JOB INJURY WAS WORKERS’ COMPENSATION (SECOND DEPT))

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ALTHOUGH THE CONDOMINIUM WAS OCCUPIED BY PLAINTIFFS’ DAUGHTER WHEN THE PIPE BROKE, THE INSURER WAS ENTITLED TO RESCIND THE POLICY BECAUSE THE PLAINTIFFS REPRESENTED THE CONDOMINIUM WOULD BE OCCUPIED BY THEM (SECOND DEPT).

The Second Department determined the defendant insurer was entitled to rescind the insurance policy because of a material misrepresentation, even if the misrepresentation was innocent or unintentional. Plaintiffs represented to the insurer that the condominium would be occupied by them and that they had no other residences. However, plaintiffs never lived in the condominium, which was occupied by plaintiffs’ daughter. The condominium was damaged when a water pipe broke:

“To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy” … . “A representation is a statement as to past or present fact, made to the insurer by, or by the authority of, the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof” … . “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented”… . “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” … .

Otsego Mutual established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiffs’ application for insurance contained a material misrepresentation regarding whether the townhouse would be owner-occupied and that it would not have issued the subject policy if the application had disclosed that the townhouse would not be owner-occupied … .

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs’ contention that Otsego Mutual was required to establish that their misrepresentation was willful lacks merit. With limited exception not applicable here, “a material misrepresentation, even if innocent or unintentional, is sufficient to warrant rescission of an insurance policy” … . Piller v Otsego Mut. Fire Ins. Co., 2018 NY Slip Op 05615, Second Dept 8-1-18

INSURANCE LAW (ALTHOUGH THE CONDOMINIUM WAS OCCUPIED BY PLAINTIFFS’ DAUGHTER WHEN THE PIPE BROKE, THE INSURER WAS ENTITLED TO RESCIND THE POLICY BECAUSE THE PLAINTIFFS REPRESENTED THE CONDOMINIUM WOULD BE OCCUPIED BY THEM (SECOND DEPT))/CONTRACT LAW (INSURANCE LAW, ALTHOUGH THE CONDOMINIUM WAS OCCUPIED BY PLAINTIFFS’ DAUGHTER WHEN THE PIPE BROKE, THE INSURER WAS ENTITLED TO RESCIND THE POLICY BECAUSE THE PLAINTIFFS REPRESENTED THE CONDOMINIUM WOULD BE OCCUPIED BY THEM (SECOND DEPT))/MISREPRESENTATION (INSURANCE LAW, ALTHOUGH THE CONDOMINIUM WAS OCCUPIED BY PLAINTIFFS’ DAUGHTER WHEN THE PIPE BROKE, THE INSURER WAS ENTITLED TO RESCIND THE POLICY BECAUSE THE PLAINTIFFS REPRESENTED THE CONDOMINIUM WOULD BE OCCUPIED BY THEM (SECOND DEPT))

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NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT).

The Second Department determined the criminal possession of a weapon in the second degree was separate and distinct from the shooting of the victim. Therefore the sentences for possession of a weapon and murder should not run consecutively:

… [T]he sentence imposed on the conviction of criminal possession of a weapon in the second degree should not run consecutively to the sentence imposed on the conviction of murder in the second degree. “No evidence was adduced at trial to establish that the defendant’s possession of a gun was separate and distinct from his shooting of the victim” … . People v Ross, 2018 NY Slip Op 05610, Second Dept 8-1-18

CRIMINAL LAW (SENTENCING, NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT))/SENTENCING (NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT))/CRIMINAL POSSESSION OF A WEAPON  (SENTENCING, NO EVIDENCE POSSESSION OF A WEAPON AND SHOOTING THE VICTIM WERE SEPARATE AND DISTINCT, SENTENCES SHOULD HAVE BEEN CONCURRENT (SECOND DEPT))

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(HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT).

The Second Department determined it was (harmless) error to allow a detective to identify the person depicted in a video as the defendant:

Generally, “lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts,” as it is the jury’s province “to draw the appropriate inferences arising from the facts” … . While, under the proper circumstances, the court has the discretion to allow a lay witness to express his or her opinion that an individual depicted in a surveillance video is the defendant … , here, there was no basis for concluding that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the video …. The detective had arrested the defendant more than two weeks after the crime, and, at that time, briefly interviewed the defendant. “There was no evidence that [the] defendant had changed his appearance prior to trial, and the record is devoid of any other circumstances suggesting that the jury—which had ample opportunity to view [the] defendant—would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Reddick, 2018 NY Slip Op 05608, Second Dept 8-1-18

CRIMINAL LAW (IDENTIFICATION, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/VIDEO (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))

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NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT).

The First Department determined plaintiff shareholder in a cooperative could not bring a “breach of fiduciary duty” cause of action against individual members of the cooperative board. Plaintiff alleged her cooperative apartment was damaged by water from a greenhouse above the apartment. The first department found that that was no corporate tort for which individual members of the board could be liable:

It is well-settled that a breach of fiduciary duty claim does not lie against individual cooperative board members where there is no allegation of “individual wrongdoing by the members . . . separate and apart from their collective actions taken on behalf of the” cooperative … .  Here, the complaint does not allege that any of the individual board members committed an independent wrong that was distinct from the actions taken as a board collectively. Thus, the breach of fiduciary duty claim is not viable. …

Contrary to plaintiff’s contention, this result is entirely consistent with Fletcher v Dakota, Inc. (99 AD3d 43 [1st Dept 2012]). In Fletcher, we concluded that “although participation in a breach of contract will typically not give rise to individual director liability, the participation of an individual director in a corporation’s tort is sufficient to give rise to individual liability” (id. at 47). Thus, we declined to dismiss claims against a cooperative board director who was alleged to have participated in the cooperative’s violation of the State and City Human Rights Laws.

Here, in contrast, there is no viable corporate tort alleging breach of fiduciary duty, because a corporation owes no fiduciary duty to its shareholders … . Thus, in the absence of a corporate tort in which the individual board members could have participated, the breach of fiduciary duty claim as against them was properly dismissed. Indeed, Fletcher made this very point by dismissing the breach of fiduciary duty cause of action against an individual board director, while at the same time sustaining Human Rights Law claims against him. Hersh v One Fifth Ave. Apt. Corp., 2018 NY Slip Op 05522, First Dept 7-26-18

FIDUCIARY DUTY, BREACH OF (COOPERATIVES, NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/COOPERATIVES (NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/CORPORATION LAW (COOPERATIVES,  NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/NEGLIGENCE (COOPERATIVES, CORPORATE TORT,  NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))

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VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT).

The First Department determined (1) the ventilator on which plaintiff was crouching when it detached and he fell was not a safety device within the meaning of Labor Law 240 (1), (2) plaintiff’s testimony that he couldn’t reach the ventilator, which he was attempting to remove, from the A-frame ladder he was provided entitled him to summary judgment on the Labor Law 240 (1) cause of action, and (3) the landlord was entitled to summary judgment on the cross-claim for indemnification by the tenant, noting that the indemnification clause in the lease did not require that the tenant be negligent and that a Labor Law 240 (1) violation is not a finding that the tenant was negligent:

Contrary to plaintiff’s contention, the ventilator he was standing on and disassembling when he fell was not a safety device; it was the object of the demolition project on which he was employed, and was not intended to protect him from elevation-related risks … . …

Despite Eight Oranges’ [tenant’s] argument to the contrary, this indemnification provision does not require a finding of negligence on the part of the tenant before it is triggered. Nor does it violate General Obligations Law § 5-321, “since a finding of liability under Labor Law § 240 is not the equivalent of a finding of negligence and does not give rise to an inference of negligence” … . It is clear from the contractual language at issue that the landlord … intended to be indemnified by the tenant, Eight Oranges, for any “damage or injury occurring or arising to any person” on the property, that is caused by the tenant. Hong-Bao Ren v Gioia St. Marks, LLC, 2018 NY Slip Op 05520, First Dept 7-26-18

LABOR LAW-CONSTRUCTION LAW (VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/CONTRACT LAW  (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))/NEGLIGENCE (LABOR LAW-CONSTRUCTION LAW VENTILATOR FROM WHICH PLAINTIFF FELL WAS NOT A SAFETY DEVICE, HOWEVER THE FACT THAT PLAINTIFF COULD NOT REACH THE VENTILATOR FROM THE LADDER ENTITLED HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION, A VIOLATION OF LABOR LAW 240 (1) IS NOT A FINDING OF NEGLIGENCE, LANDLORD ENTITLED TO INDEMNIFICATION UNDER THE LEASE TERMS (FIRST DEPT))

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CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, reversing Supreme Court, determined that a contract concerning plaintiff-broker’s entitlement to a commission was ambiguous requiring a trial. The facts are too complex to fairly summarize here:

Crucially, an agreement can be deemed unambiguous “if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion'” … .

However, a contract is ambiguous when “read as a whole, [it] fails to disclose its purpose and the parties’ intent” … , or when specific language is “susceptible of two reasonable interpretations”… . Moreover, the agreement must be read as a whole “to ensure that excessive emphasis is not placed upon particular words or phrases” … .

Stated differently, the existence of ambiguity is determined by examining ” the entire contract and consider[ing] the relation of the parties and the circumstances under which it was executed,'” with the wording viewed ” in the light of the obligation as a whole and the intention of the parties as manifested thereby'” … . And, importantly, “[i]n construing a contract, one of a court’s goals is to avoid an interpretation that would leave contractual clauses meaningless” … .

We find that the agreement here is ambiguous with regard to which parties are bound to its terms. Georgia Malone & Co., Inc. v E&M Assoc., 2018 NY Slip Op 05525, First Dept 7-26-18

CONTRACT LAW (REAL ESTATE, CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/REAL ESTATE (BROKER’S COMMISSION, CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/BROKERS (REAL ESTATE, CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF BROKER WAS ENTITLED TO A COMMISSION, SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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