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Decided on January 26, 2009
Supreme Court, Nassau County

11601-08
COUNSEL FOR PLAINTIFF Theodore S. Steingut, Esq. One Whitehall Street - 17th Floor New York, New York 10004 COUNSEL FOR DEFENDANT Steven L. Leavitt & Assoc. P.C.
Two Hillside Avenue, Bldg F
Williston Park, New York 11596
Leonard B. Austin, J.
Plaintiff, Distinctive Ventures LLC, moves for an order pursuant to CPLR 3212 granting [*2]it summary judgment on the claims advanced in its complaint and dismissing the counterclaims of Defendant, Cooper Advisory Services, Inc.
Defendant, Cooper Advisory Services, Inc., cross-moves for an order pursuant to CPLR 3212(c) granting it partial summary judgment dismissing Plaintiff's first cause of action.
BACKGROUND
In this action, Plaintiff, Distinctive Ventures LLC ("Distinctive"), the owner of the development known as "Panoramic Project," seeks the return of $186,000 in commissions which it advanced to its broker, Defendant, Cooper Advisory Services, Inc. ("Cooper"), maintaining that it was never earned. Distinctive also seeks a declaration regarding Cooper's entitlement to commissions on two sales which, although they never closed, Distinctive has sought to retain the purchasers' deposits in a separate proceeding.
In response, Cooper seeks to retain the commissions Distinctive advanced to it as "non

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