        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

271
CA 12-01177
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


BUYER’S FIRST CHOICE, INC., DOING BUSINESS
AS 2.5 % REAL ESTATE DIRECT,
PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

JOANNE SIMME, ALSO KNOWN AS JOANNE SIMME-GOOD,
DOING BUSINESS AS GOOD CHOICE,
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


MICHAEL RAKOWSKI, DEPEW, FOR PLAINTIFF-APPELLANT.

WEISS & DETIG, GRAND ISLAND (NORTON T. LOWE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Erie County Court (Thomas P.
Franczyk, J.), entered October 12, 2011. The order, among other
things, denied the motion of plaintiff for summary judgment.

     It is hereby ORDERED that said appeal insofar as it concerns the
counterclaim in the answer is unanimously dismissed and the order is
affirmed without costs.

     Memorandum: Plaintiff commenced the instant action seeking
damages for defendant’s alleged breach of her duty of loyalty to
plaintiff while she was associated with plaintiff as an independent
contractor/real estate broker. According to plaintiff, defendant
breached her duty of loyalty to plaintiff by communicating with an
individual and arranging a meeting with her to list and sell her
property.

     In appeal No. 1, plaintiff appeals from an order that, inter
alia, denied its motion for summary judgment on the cause of action
for breach of the duty of loyalty and for dismissal of the
counterclaim in defendant’s answer, and granted defendant leave to
amend her answer. In appeal No. 2, plaintiff appeals from an order
that denied its motion seeking, inter alia, to dismiss the
counterclaim in the amended answer and second amended answer pursuant
to CPLR 3211 (a) (7), for failure to state a cause of action.

     With respect to appeal No. 1, we note at the outset that
plaintiff’s appeal from the order insofar as it denied that part of
plaintiff’s motion to dismiss the counterclaim in defendant’s answer
                                 -2-                           271
                                                         CA 12-01177

must be dismissed. Inasmuch as the answer in appeal No. 1 was
superseded by defendant’s subsequent amended answer and second amended
answer, “issues involving the original [answer] are moot” (Sutton
Investing Corp. v City of Syracuse, 12 AD3d 1201, 1201). We otherwise
affirm the order in appeal No. 1. We conclude in particular that
County Court properly denied that part of plaintiff’s motion for
summary judgment on the cause of action for breach of the duty of
loyalty. There is no written agreement between the parties setting
forth the nature of their relationship and the scope of defendant’s
duties, and we conclude that there are triable issues of fact whether
defendant was required to bring all leads concerning potential clients
to plaintiff or whether she was to work only with plaintiff’s existing
clients (see Bynog v Cipriani Group, 1 NY3d 193, 198, rearg denied 2
NY3d 794; see also G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d 95, 103,
affd 10 NY3d 941).

     We conclude in appeal No. 2 that the court properly denied that
part of plaintiff’s motion to dismiss the counterclaim in defendant’s
second amended answer. Contrary to plaintiff’s contention, the
counterclaim does not fail to state a cause of action (see generally
CPLR 3026; Leon v Martinez, 84 NY2d 83, 87-88).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
