NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1528-18T1 BARRY H. GERTSMAN & COMPANY, Plaintiff-Appellant, v. 5218 ATLANTIC AVENUE ASSOCIATES, LLC and GAP PROPERTIES, LLC, Defendants-Respondents, and THE STATE OF NEW JERSEY, Defendant. ____________________________ Submitted November 6, 2019 – Decided December 10, 2019 Before Judges Hoffman and Firko. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1531-17. Briggs Law Office, LLC, attorneys for appellant (Norman W. Briggs, of counsel and on the briefs; Daniel S. Gradwohl, on the briefs). Jones Wolf & Kapasi, LLC, attorneys for respondents (Joseph K. Jones, on the brief). PER CURIAM In this breach of contract action, plaintiff Barry H. Gertsman & Co. appeals from the Law Division's May 21, 2018 order granting defendant 5218 Atlantic Avenue Associates, LLC's (5218 Atlantic) cross-motion for summary judgment finding plaintiff waived its right to receive quarterly commission payments.1 Plaintiff also appeals from the court's November 14, 2018 order awarding counsel fees. We affirm substantially for the reasons stated by Judge John C. Porto in his oral decisions issued as to each order under appeal. I. Defendants own a commercial building located at 5218 Atlantic Avenue in Mays Landing. In 2005, plaintiff, a licensed real estate broker, procured a tenant, the State of New Jersey, to lease office space from defendants. 1 GAP Properties, LLC was not a signatory to the commission agreement. A-1528-18T1 2 On May 29, 2005, plaintiff and 5218 Atlantic entered into a two-page commission agreement (agreement) relative to this transaction. Plaintiff prepared the agreement. Paragraph two states: 2. Upon Lessee's execution of the Lease (the "Execution Date"), and the commencement of rental payments, Lessor agrees to pay Broker an annual amount equal to six percent (6%) of the gross consideration, including, but not limited to, Rent and Additional Rent, paid by Lessee to Lessor under the Lease during any Lease Year, as compensation for Broker's efforts in effectuating the Lease (the "Broker's Commission"). Lessor shall pay the Broker's Commission for each Lease Year in four equal quarterly installments per year, in advance, no later than the tenth (10th) day for the first month of each calendar quarter next following the Execution Date during each year of the Term of the Lease, including any renewals thereto. Additionally, the agreement entitled plaintiff to receive interest and attorney's fees in the event 5218 Atlantic defaulted on payments. On September 14, 2006, defendants entered into a lease agreement with the State, which required the State pay rent on the first day of each month. From September 2006 until August 2009, 5218 Atlantic paid commission payments to plaintiff pursuant to the quarterly schedule contemplated in the commission agreement. However, starting in August 2009, ...
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