DocketNumber: No. CV91 282876S
Citation Numbers: 1992 Conn. Super. Ct. 6986
Judges: KATZ, JUDGE CT Page 6987
Filed Date: 7/23/1992
Status: Non-Precedential
Modified Date: 4/17/2021
The plaintiff, Garamella, in Count One of his Complaint alleges that he entered into a "co-broke agreement with Lanosa," (the "Co-Broker Agreement") the terms of which require Lanosa to pay Garamella one half of the commission he was to receive pursuant to the Listing Agreement. See Plaintiff's Complaint para. 5. These are the only allegations made against Lanosa Realtors.
Garamella has also named as a defendant the Seller's attorney, Nicholas W. Rosa ("Rosa"). The First Count of Garamella's complaint against Rosa alleges recovery based on Rosa stopping payment on a check that was representative of monies which were owed as real estate commissions. The second count alleges liability based on Rosa's alleged breach of a fiduciary duty owed to Garamella, and the third count alleges a violation of the Connecticut Unfair Trade Practices Act.
Lanosa Realtors by way of cross-claim has alleged that Rosa has misappropriated monies which were due and owing to Lanosa as real estate commissions. Lanosa further alleges that Rosa's conduct in this regard amounts to a breach of an escrow agreement (the "Escrow Agreement") as well as an unfair and deceptive trade practice in violation of the Connecticut Unfair Trade Practices Act.
Lanosa has moved for summary judgment as against Garamella. The question posed by this motion asks whether the co-broke agreement, which is the basis of realtor Garamella's claim against realtor Lanosa, conditions the plaintiff's entitlement to his commission upon Lanosa's receipt of full payment from the sellers.
Defendant would have this court determine that in the absence of affidavit and/or deposition to the contrary, the co-broke agreement, as a matter of law, is subject to the same interpretation of that set forth in Sheketoff v. Prevedine,
Plaintiff argues first that receipt of the commission by defendant was not a condition precedent and secondly, that even if it were, said condition was waived by the defendant's failure to seek performance. In this case Lanosa's right to recover his commission from the seller depended on the validity of the listing agreement it drafted. The plaintiff argues that because said agreement was unenforceable, the defendant should be barred from relying on the inability to satisfy the condition precedent as a shield in this action.
Sheketoff v. Previdine, supra, remains good law and is even mirrored by custom in the business. See Selby v. Pelletier,
The question of estoppel, however, as stated in plaintiff's opposition to the motion for summary judgment has been sufficiently raised for this court to find an issue of material fact that would defeat the motion for summary judgment. "The party seeking summary judgment bears the burden of showing the nonexistence of any material fact." Cummings Lockwood v. Gray,
The defendant herein has raised the lack of satisfaction of this condition precedent in its first special defense, to which the plaintiff has filed a denial. Pursuant to Practice Book 171, the plaintiff denied the special defense which states. . .[b]ecause Lanosa Realtors has not received payment under the Listing Agreement, the plaintiff is not entitled to payment under the Co-Broker Agreement. Therefore, the plaintiff has denied that Lanosa's failure to receive his commission precludes payment pursuant to the co-broke agreement. That is sufficient and the plaintiff will not be precluded now from relying on Lanosa's own culpability as it relates to his inability to collect his commission as an issue of material fact in response to a motion for summary judgment. There is an issue of material fact as to whether the failure to satisfy a condition precedent should be excused.
KATZ, J.