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Civil Court of the City of New York, Richmond County, July 12, 2011
APPEARANCES OF COUNSEL
Allyn J. Crawford, Staten Island, for plaintiff. Law Offices of Howard M. File, P.C., Staten Island, for M.S.B. Development Company, Inc., defendant.
{**32 Misc 3d at 724} OPINION OF THE COURT
Orlando Marrazzo, Jr., J.
A trial was held before the court on June 17, 2011, and June 23, 2011, and based on the evidence and testimony of the witnesses the court makes the following findings of fact and conclusions of law.
This action to recover damages for breach of contract originated in the Supreme Court, Richmond County, where Judicial Hearing Officer Michael Ajello, in a decision dated November 2, 2009, determined that a breach of contract had occurred in fact. Along with this finding, an award for damages against the defendant, M.S.B. Development Company, Inc. (hereinafter the defendant), was entered and the defendant's counterclaim against the plaintiff, Casandra Properties, Inc. (hereinafter the plaintiff), was dismissed. During the trial before Judicial Hearing Officer Ajello, the action against defendant Savo Brothers was discontinued, leaving only M.S.B. Development Company, Inc., as a defendant. On appeal from that nonjury decision, the Appellate Division, [*2]Second Department, in its December 28, 2010 decision, modified Judicial Hearing Officer Ajello's decision (Casandra Props., Inc. v M.S.B. Dev. Co., Inc., 79 AD3d 1088 [2010]).
The Appellate Division affirmed the finding of liability for breach of contract and the dismissal of the defendant's counterclaim, but also determined that the method of calculating damages was in error, and thus deleted the damages award from the decision. The Appellate Division then remanded the case back to the Supreme Court for a retrial on the issue of damages, though without setting forth how damages are to be calculated. Pursuant to the authority granted to the Supreme Court by CPLR 325 (d), the Supreme Court transferred the claim to the court it is now before, the Richmond County Civil Court.
As was found by both the Supreme Court and the Appellate Division, the parties to this action entered into a contract dated June 11, 1997 which provided that plaintiff would act as defendant's exclusive broker for the sale of the houses in a 90-unit development called "Sailor's Key." This agreement bestowed a commission of $4,500 per house upon the plaintiff, with the "commission to be deemed earned, and due and payable at time of actual closing of title to any such house." By its terms the contract could be cancelled only if (1) "Casandra Zappala,{**32 Misc 3d at 725} individually, no longer devotes her time and energy on behalf of Casandra Properties, Inc. to this project," or (2) plaintiff "fails to have purchasers enter sales contracts to sell a minimum of 40 semi

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