Gurney, Becker & Bourne, Inc. v. Simon , 89 A.D.2d 795 ( 1982 )

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: The complaint alleges that plaintiff, a licensed real estate brokerage, entered into an oral agreement with defendant whereby defendant was to pay plaintiff brokerage commissions over a 10-year period as a percentage of rent on premises owned by defendant for which plaintiff had obtained a lessee. Defendant’s motion to dismiss (CPLR 3211, subd [a], par 5) was properly granted by the City Court of Lackawanna on the ground that the oral agreement was unenforceable under the Statute of Frauds (General Obligations Law, § 5-701, subd a, par 1). County Court reversed, erroneously concluding that section 5-701 (subd a, par 10), which contains an exception for real estate brokers, was controlling and that the agreement was thus enforceable. County Court’s determination that paragraphs 1 and 10 are mutually exclusive and that 10 applies in this situation has no support in the law (see Biskind & Barasch, Law of Real Estate Brokers, § 67, p 164; see, also, Babtkis Assoc. v Tarazi Realty Corp., 34 AD2d 754). (Appeal from order of Erie County Court, La Mendola, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Schnepp, JJ.