Signature Realty, Inc. v. Tallman

—Appeal from an order of Supreme Court, Oneida County (Parker, J.), entered July 26, 2001, which, inter alia, granted that part of plaintiffs motion for summary judgment on the first cause of action seeking brokerage commissions plus interest on rental payments during the initial lease term.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Contrary to the contention of plaintiff, Supreme Court properly granted only that part of her motion for summary judgment on the first cause of action seeking brokerage commissions plus interest on rental payments during the initial lease term. We conclude as a matter of law that the parties’ Brokerage Services and Commission Agreement (brokerage agreement) is ambiguous with respect to the issue whether plaintiff broker would earn commissions when defendant exercised an option to renew the lease (see generally W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]), and it is well settled that, “[i]f there is any doubt or uncertainty as to the meaning of the disputed language in [a] brokerage agreement, all ambiguity must be resolved against the broker who prepared it” (Graff v Billet, 64 NY2d 899, 902 [1985]; see Taylor & Co. v Terra Capital Assoc., 292 AD2d 836, 837 [2002]). Thus, the court properly determined that plaintiff is not entitled to commissions on rental payments during any renewal terms of the lease.

We further conclude that the court properly granted that part of defendant’s motion seeking dismissal of the second cause of action sounding in quasi contract. Plaintiff is not entitled to restitution in quasi contract because there exists a valid and enforceable written contract governing the “particular subject matter” in dispute, i.e., plaintiff’s alleged entitlement to commissions (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]; see Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1202-1203 [1998], lv denied App Div, 4th Dept [Mar. 19, 1999]; Baumberger Capital v Canaan Partners, 235 AD2d 216 [1997], lv denied 90 NY2d 804 [1997]). The court also properly granted that part of defendant’s motion seeking dismissal of the third cause of action for fraud because that cause of action merely duplicates the cause of action for breach of contract (see Reiser, Inc. v Roberts Real Estate, 292 AD2d 726, 727-728 [2002]; cf. Eagle Comtronics, 256 AD2d at 1203).

All concur except Gorski and Lawton, JJ., who dissent in part and vote to modify in accordance with the following memorandum.