| Marshall v Bataille |
| 2018 NY Slip Op 50208(U) [58 Misc 3d 157(A)] |
| Decided on February 9, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Mishiyeva Law, PLLC (Kamilla Mishiyeva, Esq.), for appellant. Lesly Bataille and Max Bataille, respondents pro se (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Adam Silvera, J.), entered April 29, 2016. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.
In this action, plaintiff seeks to recover the principal sum of $12,000, based on defendants' alleged failure to pay him the balance of a real estate brokerage commission. At a nonjury trial, plaintiff testified that, together with defendant Lesly Bataille, Doing Business as Bataille Realty, he had co-brokered the sale of premises owned by defendant Max Bataille, and that the parties had agreed that he would be paid half of a total 6% commission on the contract price of $1,200,000, or $36,000, but that he had instead been paid only $24,000. Defendant Lesly Bataille testified that the contract price for the premises had been $1,200,000, and that she had agreed to split a 6% brokerage commission evenly with plaintiff, but that, at the closing, which plaintiff had not attended, all the participants in the transaction had made concessions. As a result, the brokerage commission had been reduced from 6% to 4%, slightly over half of which had been paid to plaintiff. Following the trial, the complaint was dismissed upon a finding that plaintiff had failed to make out a prima facie case, and that defendant Lesly Bataille's testimony had been consistent and credible.
It appears from the record that the only matter in dispute was whether defendant Lesly [*2]Bataille had actual or implied authority to negotiate a reduction in plaintiff's commission. The parties provided no evidence on this issue. Under these circumstances, we are of the view that a new trial is warranted.
Accordingly, the judgment is reversed and the action is remitted to the Civil Court for a new trial.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.