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

282
CA 15-00773
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, AND TROUTMAN, JJ.


THE WHARTON ASSOCIATES, INC., DOING BUSINESS
AS REMAX 1ST COMMERCIAL,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

CONTINENTAL INDUSTRIAL CAPITAL LLC, AND TECH
PARK OWNER LLC, DEFENDANTS-RESPONDENTS-APPELLANTS.


BRIAN R. HENZEL PLLC, PITTSFORD (BRIAN R. HENZEL OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.

CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (AMY L. DIFRANCO OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT CONTINENTAL INDUSTRIAL
CAPITAL LLC.

LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (STACEY E. TRIEN OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT TECH PARK OWNER LLC.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Thomas A. Stander, J.), entered July 23, 2014. The
order granted that part of plaintiff’s motion seeking summary judgment
against both defendants, denied that part of plaintiff’s motion
seeking attorneys’ fees and denied the cross motion of defendants for
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion for
summary judgment against defendant Tech Park Owner LLC, and granting
in part the cross motion and dismissing the amended complaint against
that defendant, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
seeking brokerage commissions. Plaintiff moved for summary judgment
against defendants, and for an award of attorneys’ fees, and
defendants cross-moved for summary judgment dismissing the amended
complaint against them. Plaintiff now appeals and defendants cross-
appeal from an order granting that part of plaintiff’s motion for
summary judgment, denying that part of plaintiff’s motion for
attorneys’ fees, and denying defendants’ cross motion.

     Defendant Continental Industrial Capital LLC (CIC) entered into a
lease agreement (Lease) with a tenant on property that it owned, and
which was subsequently sold to defendant Tech Park Owner LLC (Tech
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                                                         CA 15-00773

Park). At the same time it entered into the Lease, CIC signed a
Commission Agreement with plaintiff, pursuant to which CIC agreed to
pay plaintiff a commission for leasing the property to the tenant.
The Commission Agreement provided that plaintiff was also entitled to
a commission if the tenant occupied additional space (unless the
tenant was represented by another broker) or the tenant exercised any
option under the Lease or renewed the Lease. When CIC sold the
property to Tech Park, Tech Park expressly assumed the Lease. Tech
Park and the tenant subsequently entered a “FIRST AMENDMENT TO LEASE
AGREEMENT” (Amendment), but plaintiff was not paid any brokerage
commission.

     We agree with Tech Park that Supreme Court erred in granting that
part of the motion for summary judgment against it and erred in
denying that part of the cross motion seeking summary judgment
dismissing the amended complaint against it, and we therefore modify
the order accordingly. “Absent an affirmative assumption, a grantee
is only liable for those covenants that run with the land” (Longley-
Jones Assoc. v Ircon Realty Co., 67 NY2d 346, 348; see Gurney, Becker
& Bourne v Bradley, 101 AD2d 1012, 1012-1013). “There is no question
that [a] brokerage agreement is not a covenant running with the land”
(Gurney, Becker & Bourne, 101 AD2d at 1013; see Longley-Jones Assoc.,
67 NY2d at 348). Here, Tech Park did not expressly assume the
Commission Agreement, and it is therefore not liable for the payment
of any brokerage commission to plaintiff (see Longley-Jones Assoc., 67
NY2d at 348; Gurney, Becker & Bourne, 101 AD2d at 1012-1013; cf.
Dysal, Inc. v Hub Props. Trust, 92 AD3d 826, 828).

     We reject CIC’s contention that the court erred in granting that
part of the motion for summary judgment against it and erred in
denying that part of the cross motion seeking summary judgment
dismissing the amended complaint against it. Plaintiff met its burden
of establishing its entitlement to judgment as a matter of law by
submitting the Commission Agreement and the Amendment (see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324). The Amendment renewed
the Lease for an additional five years and expanded the tenant’s
premises, thus triggering the provisions in the Commission Agreement
for the payment of a commission to plaintiff. In opposition to the
motion, CIC failed to raise a triable issue of fact that the Amendment
constituted a novation (see Allied Irish Banks, P.L.C. v Young Men’s
Christian Assn. of Greenwich, 105 AD3d 516, 517; see generally Flaum v
Birnbaum, 120 AD2d 183, 192).

     Finally, we reject plaintiff’s contention that the court erred in
denying that part of its motion seeking an award of attorneys’ fees.
“Under the general rule, attorneys’ fees and disbursements are
incidents of litigation and the prevailing party may not collect them
from the loser unless an award is authorized by agreement between the
parties or by statute or court rule” (Mount Vernon City Sch. Dist. v
Nova Cas. Co., 19 NY3d 28, 39 [internal quotation marks omitted]).
“[T]he court should not infer a party’s intention to waive the benefit
of the rule unless the intention to do so is unmistakably clear from
the language of the promise” (id. [internal quotation marks and
emphasis omitted]; see Colonial Sur. Co. v Genesee Val. Nurseries,
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                                                        CA 15-00773

Inc., 94 AD3d 1422, 1423). Here, while the Lease contains a provision
for the recovery of attorneys’ fees, plaintiff is seeking to enforce
its rights pursuant to the Commission Agreement, which does not
contain any such provision (see Schwartz v Rosenberg, 67 AD3d 770,
771-772).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
