Thomas A. Sbarra Real Estate, Inc. v. Lavelle-Tomko
Cases that cite this one
7 later published cases cite this decision.
- Howard v. Reserve at Spaulding Green (Appellate Division of the Supreme Court of New York 2024)
- New York Mun. Power Agency v. Town of Massena (Appellate Division of the Supreme Court of New York 2020)
- Rudovic v. Rudovic (Appellate Division of the Supreme Court of New York 2015)
- Thomas A. Sbarra Real Estate, Inc. v. Lavelle-Tomko (Appellate Division of the Supreme Court of New York 2014)
- Thomas A. Sbarra Real Estate, Inc. v. Lavelle-Tomko (Appellate Division of the Supreme Court of New York 2014)
- State Farm Fire & Casualty Co. v. Main Bros. Oil Co. (Appellate Division of the Supreme Court of New York 2012)
- State Farm Fire & Casualty Co. v. Main Bros. Oil Co. (Appellate Division of the Supreme Court of New York 2012)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
Appeal from an order of the Supreme Court (Lebous, J.), entered September 9, 2010 in Broome County, which denied defendant’s motion to dismiss the complaint.
In 2007, plaintiffs and defendant, a former employee of plaintiff Thomas A. Sbarra Real Estate, Inc., entered into a settlement agreement by which, among other things, plaintiffs
“A CPLR 3211 (a) (1) motion ‘may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiffs factual allegations, conclusively establishing a defense as a matter of law’ ” (Jesmer v Retail Magic, Inc., 55 AD3d 171, 180 [2008], quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Berardino v Ochlan, 2 AD3d 556, 557 [2003]). Here, in support of her motion, defendant presented the parties’ settlement agreement and averred that she had complied with every term contained therein, including the requirement that she “surrender her real estate [broker] license and otherwise cease acting as a real estate agent or broker by September 1, 2007.” According to defendant, there is nothing in the agreement that prohibits her from regaining her broker license or reentering the work force as a real estate agent or broker. Plaintiffs aver that the absence of a sunset clause in the agreement indicates that defendant was required to permanently surrender her license and permanently cease working as a real estate agent. The parties’ conflicting interpretations of the settlement agreement present issues requiring further development. As the proffered documentary evidence does not “resolve[ ] all factual issues as a matter of law, and conclusively dispose[ ] of the plaintiffs’] claim” (Trade Source v Westchester Wood Works, 290 AD2d 437, 438 [2002]), defendant’s motion to dismiss the complaint was properly denied.
Mercure, J.P, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, with costs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.