In re New York City School Construction Authority

—In a condemnation proceeding, the condemnee, Heidy Briguglio, appeals from (1) an order of the Supreme Court, Kings County (Scholnick, J.), dated February 8, 2000, which granted the motion of the respondent, Empress Realty, for summary judgment on its claim for a brokerage commission, and denied her cross motion for summary judgment dismissing the claim, and (2) a judgment of the same court, entered April 11, 2000, which is in favor of Empress Realty and against her in the principal sum of $245,250.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the motion is denied, the cross motion is granted, the order is vacated, and the claim for a broker’s commission is dismissed; and it is further,

Ordered that the condemnee is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the proceeding (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

By judgment dated January 8, 1998, the Supreme Court granted a petition by the New York City School Construction Authority (hereinafter the NYCSCA) to condemn certain real property in Brooklyn (hereinafter the premises) owned by the appellant, Heidy Briguglio, that was needed for the construction of a new school. In April 1998 Empress Realty (hereinafter Empress) intervened in the proceeding, seeking payment of a 15% broker’s commission pursuant to a broker’s agreement with Briguglio dated May 14, 1997. Empress, characterizing the agreement as an exclusive right to sell and the condemnation as the equivalent of a sale within the meaning and during the term of the agreement, argued that it was entitled to a commission even if it played no part in the condemnation proceeding. In any event, Empress argued, it was the procuring cause of the property being selected for condemnation, as it brought the premises to the attention of various local and elected officials. The Supreme Court granted summary judgment to Empress on its claim for a commission, and denied the cross motion of Briguglio for summary judgment dismissing the claim. We reverse.

In resolving the issues raised on this appeal, it need not be determined whether the subject broker’s agreement is properly characterized as an exclusive right to sell (see, U.S. No. 1 Laffey Real Estate v Hanna, 215 AD2d 552; Rennert Diana & Co. v Ziskind, 191 AD2d 545). Nor need it be determined whether, in the abstract, a condemnation may be deemed a sale of property. Rather, in interpreting the subject agreement, the paramount consideration is to give effect to the intent of the parties as expressed by the language employed (see, Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Hickman v Saunders, 228 AD2d 559; Ditmars-31’ St. Dev. Corp. v Punia, 17 AD2d 357). Thus, the relevant and determinative inquiry is whether the parties’ intent, as expressed by the language employed in the broker’s agreement, was that the taking of the subject premises by condemnation would trigger the right to a commission. Here, in opposition to Briguglio’s prima facie showing of entitlement to judgment as a matter of law on her claim that this was not the parties’ intent, Empress failed to raise a triable issue of fact that it was.

The parties’ agreement speaks exclusively of the sale of the premises. Thus, the taking of the premises by condemnation was not an event, by the express terms of the agreement, that was to trigger the right to a commission (see, Shaw v Avenue D Stores, 115 NYS2d 194). Consistent with the express terms of the agreement, Briguglio and her son (who hired Empress on Briguglio’s behalf) submitted sworn assertions that a condemnation was not an event contemplated by the parties as one that would trigger the right to a commission under the agreement. These sworn assertions are also consistent with Empress’s acquiescence, without protest or comment, in Briguglio’s request, by letter dated September 7, 1997, that Empress take no part in the condemnation proceedings or in the failed negotiations with the NYCSCA leading up to the same. This request, and Briguglio’s assertion that she would deal directly with the NYCSCA, were contrary to the express terms of the broker’s agreement, which required that any party who evidenced an interest in the premises to Briguglio “be informed they must deal directly with Empress.” Further, significantly, although Empress asserted that it was aware of the potential condemnation of the premises prior to the execution of the parties’ agreement, and that the New York City school system was its main “target” from the beginning, the agreement does not address the issue of a commission if the premises were taken by condemnation, and no effect can be given to Empress’s unexpressed, subjective intent concerning that issue (see, Ditmars-31’ St. Dev. Corp. v Punia, supra). Indeed, any ambiguity in the agreement must be construed against Empress, which drafted the agreement (see, Bernstein v Sosnowitz, 198 AD2d 204). Finally, in light of evidence, inter alia, that the NYCSCA had identified the subject premises as a potential site for the school as early as 1991, Empress’s vague assertions that it showed the premises to certain identified and unidentified public and elected officials at unspecified times is insufficient to raise a triable issue of fact that Empress was the procuring cause of the premises being selected for condemnation (see generally, Pantigo Realty v Estate of Schrenko, 249 AD2d 525; Ackerman v Dobbs, 181 AD2d 704; Norma Reynolds Realty v Wilczewski, 160 AD2d 787). In sum, summary judgment dismissing Empress’ claim for a commission should have been granted to Briguglio. Ritter, J. P., McGinity and Feuerstein, JJ., concur.