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

1263
CA 13-00867
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


BAUMANN REALTORS, INC., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

FIRST COLUMBIA CENTURY-30, LLC AND HEALTHNOW
NEW YORK, INC., DEFENDANTS-RESPONDENTS.


BLAIR & ROACH, LLP, TONAWANDA (DAVID L. ROACH OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LEWNDOWSKI & ASSOCIATES, WEST SENECA (ASHLEY J. LITWIN OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered March 12, 2013. The order granted the
motion of defendants to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff commenced this action alleging that
defendant First Columbia Century-30, LLC (Columbia) breached a broker
commission agreement with plaintiff, that defendant HealthNow New
York, Inc. (HealthNow) tortiously interfered with that agreement and
that, as a result of such breach and tortious interference, plaintiff
sustained damages as a third-party beneficiary of a lease. Defendants
moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), and
Supreme Court granted the motion. We reverse.

     Pursuant to a 2001 broker commission agreement, Columbia
recognized plaintiff as “the exclusive leasing agent” for HealthNow
and agreed to pay plaintiff a commission “for the initial term of the
lease” and an additional commission if HealthNow “renew[ed] or
extend[ed] the term of the lease.” Thereafter, in 2001, HealthNow and
Columbia entered into a 10-year lease with an option to renew for two
five-year terms “upon all of the [same] terms and conditions” if
HealthNow provided notice of renewal a year “prior to expiration of
the then current term.” In 2011, HealthNow, using its own broker,
entered into a new lease with Columbia that contained different terms
and conditions and purportedly superseded the 2001 lease.

     “On a motion to dismiss pursuant to CPLR 3211, pleadings are to
be liberally construed . . . The court is to accept the facts as
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                                                         CA 13-00867

alleged in the [pleading] as true . . . [and] accord [the proponent of
the pleading] the benefit of every possible favorable inference”
(Ramos v Hughes, 109 AD3d 1121, 1122 [internal quotation marks
omitted]). A motion to dismiss pursuant to CPLR 3211 (a) (1) will be
granted if the documentary evidence “resolves all factual issues as a
matter of law, and conclusively disposes of the [plaintiff’s]
claim[s]” (Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550, lv
denied 20 NY3d 861 [internal quotation marks omitted]).

     Contrary to the court’s conclusion, the documentary evidence does
not conclusively establish as a matter of law that the 2011 lease was
a new lease, as opposed to a renewal or extension of the 2001 lease.
We conclude that plaintiffs are entitled to discovery on the issue
whether the 2011 lease was a renewal or extension of the 2001 lease
(see Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 91
AD3d 1155, 1157, lv denied 19 NY3d 802; cf. Stern v Satra Corp., 539
F2d 1305, 1310).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
