Menu

D. COMMISSION DISPUTES

Kalmon-Dolgin Affiliates v. Bush Terminal Associates (164 A.D.2d. 790) "broker protection" policy - first broker to show premises to prospective tenant is "broker of record" for six months. Protection period expired.

2. Matter of Wertlieb v. Greystone Partnerships Group (165 A.D.2d 644) "Broker-finder" agreement. No stay of arbitration based on absence of license (RPL §442-d). Transaction may be sale of business as going concern, which is not within the license requirements.

3. Green & Associates v. Heydt (167 A.D.2d 328) "exclusive right to sell" contract. Seller contact day after expiration to party with whom the broker had no involvement. Court rejects claim of bad faith and denied commission.

4. Ladd v. Coldwell Banker (167 A.D.2d 676) summary judgment awarded to broker. In absence of agreement to contrary, broker entitled to commission when produces ready, willing and able buyer. Right to commission not dependent on performance of realty contract or seller's receipt of purchase price (Blackman & DeStefano v. Smith, 157 A.D.2d 932, 934).

5. Gabrielli v. Fabian (167 A.D.2d 684) summary judgment awarded to seller; unsuccessful negotiations (offers and counteroffers), with failure to agree on essential terms of contract.

6. Brener & Lewis Management v. Engel (168 A.D.2d 254) broker claims dismissed where no showing parties had reached agreement on essential terms, including payment of commission by buyer. No basis for implied agreement or quantum meruit, as no expectation of payment by seller.

7. Elliman v. Kellerman (168 A.D.2d 362) broker fails to prove duly licensed at time of transaction (RPL §442-d).

8. Barrister Referrals, Ltd. v. Windels, Marr, Davies & Ives (169 A.D.2d 622) question of fact regarding "finders fee" where initial introduction is not direct and procuring cause. Contract interpretation issue.

9. Gronich & Company v. 649 Broadway Equities Co. (169 A.D.2d 600) broker authorized as tenant's exclusive agent to negotiate lease. Parties accepted benefit of broker's services and knew broker expected to be compensated. Liability for commission is found.

10. Shepherd Real Estate v. Gibbs (169 A.D.2d 814) summary judgment dismissing broker commission claims against purchaser. Listing broker office did not advise purchasers of representation of the builder, so no basis for claim of purchaser inducing breach of contract. Action against builder continues.

11. Kronish v. Koffman (170 A.D.2d 358) question of fact re: finder's fee. Cites Minichiello v. Royal Business Fund Corp., 18 N.Y.2d 521, 527, rearg. den. 19 N.Y.2d 750, cert. den. 389 U.S. 820 regarding finders and business brokers.

12. Sabbagh v. Pantano (170 A.D.2d 411) summary judgment awarded to broker under exclusive right to sell. Nobona fide question of exclusion of the ultimate purchaser. No estoppel due to acceptance of rental commission, where broker not advised of material fact of purchase.

13. Board of Managers v. Management Consultants (170 A.D.2d 636) question of fact whether broker duly licensed at time of contracting with plaintiff.

14. Yellot v. Poritzky (170 A.D.2d 676) listing broker properly purchased listed premises for own account upon full disclosure and at fair and reasonable price. Listing broker's undisclosed purchase of unrelated, contiguous-parcel was not in breach of fiduciary duty.

15. Lubeck Realty v. Flintkote Company (170 A.D.2d 800) broker representing buyers, fails to prove commission claim against seller, as well as existence of an agreement as to essentials of the transaction.

16. Century 21 Norm Foote v. Meyer (170 A.D.2d 873) oral listing agreement with recitation of seller's obligation to pay commission memorialized in a contingent purchase contract is enforced, despite exercise of a reserved option to purchase by another buyer.

17. Century 21 A.L.P. Realty v. Doller (170 A.D.2d 940) exclusive agency listing, verdict for broker upheld where sufficient evidence that another broker procured the buyer for the premises.

18. Paladino v. Brovitz (170 A.D.2d 958) seller gets summary judgment dismissing commission claim where no explicit agreement on amount of commission. Fact issues presented on claims of quantum merit, unjust enrichment and agreement to split commission with unlicensed individual.

19. White/Tishman v. Banko (171 A.D.2d 401) executed letter provided that commission would be paid when purchase money mortgage was paid in full. After purchaser's default, defendant sold mortgage at discount to unrelated third party. Defendant has been "paid in full" as there was a satisfaction of the mortgage. Broker gets summary judgment for commission.

20. Cushman & Wakefield v. Progress Corp. (172 A.D.2d 191) exclusive right to lease claim. Transfer of properties between related entities. Signatory to exclusive right to lease is liable thereunder. Transferees not liable under commission agreements to which they were not a signatory, absent affirmative assumption.

21. Laub & Co. v. Domansky (172 A.D.2d 289) exclusive right to lease enforced against lessor. "Hard bargaining" regarding terms is permitted. Proper for plaintiff to negotiate commission with lessor despite exclusive brokerage agreement with tenant, as this agreement expressly permitted plaintiff to seek commission from lessor.

22. Freidman Drew Corp. v. MC Holdings Partners (172 A.D.2d 384) factually broker is not procuring cause and there is no basis to assert termination of commission agreement was fraudulent or in bad faith and deprived plaintiff of opportunity to earn commission.

23. Levinson v. Genesse Associates (172 A.D.2d 400) sales associate sues on promissory note for "consulting services." Recovery barred by RPL §§442-a and 442-d, which prevent sales associate from demanding compensation from other than the broker with whom she is affiliated.

24. Kalman Dolgin Affiliates v. Estate of George H. Nutman (172 A.D.2d 917) absent a contrary agreement, a principal who employs a broker is liable for commissions when the broker performs the contract by procuring a purchaser, even though the principal does not own the property and cannot sell it.

25. Foresite Properties v. Halsdorf (172 A.D.2d 929) oral listing agreement. Questions of fact presented on seller's claim that buyer fraudulently misrepresented that no broker was involved in bringing about the sale, as buyer claimed seller had full knowledge of broker's commission claim but nevertheless represented no broker was involved.

26. Farina v. Nastasi (173 A.D.2d 520) broker entitled to collect from seller. "Hold harmless" clause in purchase contract, providing for purchaser to indemnify the seller, is not dispositive.

27. Dulik v. Amamte (173 A.D.2d 674) unambiguous commission agreement enforced against defendant who signed personally and in representative capacity for corporation.

28. Holiday Management Assoc. v. Albanese (173 A.D.2d 775) summary judgment to broker on seller liability for commission, with inquest ordered to assess damages. Seller's counterclaim alleging broker's breach of fiduciary duty is severed from main action for recovery of commission.

29. Joan & Dorothy Realty v. Brooksville Properties (173 A.D.2d 783) summary judgment for broker. Issue of separate agreement between plaintiff broker and defendant's wife, who is a salesperson, fails to provide a basis to avoid commission agreement with broker. No triable issue of fact regarding fraudulent inducement.

30. Stolen v. Bruaz Realty Corp. (173 A.D.2d 927) broker obtains summary judgment as procuring cause underGreene v. Hellman, 51 N.Y.2d 197, 206. Broker earned commission upon producing ready, willing and able purchaser - a meeting of the minds on all essential terms.

31. DuBois v. McDade (173 A.D.2d 1092) seller accepts contract providing for two stage deposit ($500 down, with $4,500 in two weeks). Buyer defaulted in second installment. Question of fact exists as to whether purchaser was "ready, willing and able," which precludes summary judgment for broker. Dissent argues broker breached his fiduciary duty and is not entitled to any commission, due to failure to investigate the purchaser's financial ability.

32. Day Realty Corp. v. Mayflower Agency Co. (174 A.D.2d 302) question of fact whether broker breached fiduciary obligation by substituting less favorable lease terms for bank with whom broker allegedly had an ongoing relationship. Breach of fiduciary duty, if proven, would result in forfeiture of commission.

33. Interglobal Realty Corp. v. American Standard (174 A.D.2d 436) New York broker sued for commission on sale of New Jersey condominium. New Jersey law applied to bar the claim. Broker's only recourse is action against New Jersey broker for a referral fee.

34. Driscoll Estate Agents v. Hird (174 A.D.2d 646) broker loses under "as, when and if title passes except for willful default" commission agreement. No proof that seller failed to perform a contract to sell. Follows Graff v. Billet, 64 N.Y.2d 899.

35. Reede v. Karp (174 A.D.2d 659) former sales associate obtained judgment for past due commission splits against broker and serves restraining notices to aid collection. Current sales associate sues to have her commission splits held in trust. Court rules that former sales associate claim as judgment creditor takes priority and current sales associate must look to broker for her portion of the commission.

36. Colombo v. Sharmas Realty (174 A.D.2d 985) former sales associate obtains partial summary judgment for commission owing. Under agreement with sales associate, commission rate was dependent on sales volume and whether sales closed prior to her departure. Questions of fact presented for trial.

37. Rodolitz Organization v. Secondary Mortgage Resources (175 A.D.2d 277) recovery of brokerage commission paid to non-licensee and penalty per RPL §442-e(3) (not less than sum received nor more than four times that amount, as determined by the court). Complaint dismissed against corporate officer who signed agreement in representative capacity and did not receive a portion of the commission improperly paid to the unlicensed entity.

38. Philip Mehler Realty v. Kayser (176 A.D.2d 104) RPL §442-d bars commission claim by corporation when at time its services were rendered, corporation was not licensed although its president was licensed. Cites NFS Services v. West 73rd St. Assoc., 102 A.D.2d 388, affd. 64 N.Y.2d 919, denying claim of New Jersey broker which was not licensed in New York.

39. Urbach, Kahn & Werlin v. 250/PAS Associates (176 A.D.2d 151) tenant's claim of fraudulent misrepresentation of amount of "rentable square feet” raises triable issue of fact.

40. Odell Real Estate v. Fitzgerald (177 A.D.2d 360) summary judgment affirmed for broker upon referee's finding that seller knowingly blocked the sale and deprived broker of his commission. Seller had reneged on sale and then settled specific performance action.

41. Spalt v. Lager Associates (177 A.D.2d 879) triable issues of fact exist whether broker was the procuring cause of the lease. That plaintiff did not negotiate the details of the lease is not an "untractable impediment."

42. Bobrow & Co. v. Loft Realty (178 A.D.2d 175) summary judgment for broker pursuant to commission agreement for lease of premises. Landlord's claim of later breach by tenant is unavailing, as payment of prior installments confirms broker satisfied his obligations. Landlord's claim of salesperson's misrepresentations regarding tenant's business is barred by merger clause in commission agreement.

43. Day Realty v. Stein (178 A.D.2d 374) interpleader discharges stakeholder. Questions of fact whether plaintiff was sole broker who brought about the sale or whether other firm is entitled to share of the commission.

44. Smith & DeGroat v. Vita (178 A.D.2d 591) broker enforces exclusive listing agreement, having produced a ready, willing and able buyer. Seller rejected offer and secretly sold to corporation controlled by brother of the buyer prospect. Court finds ample evidence to support claim that defendants acted to deprive broker of commission which was owing.

45. Bob Howard v. Baltis (178 A.D.2d 740) following expiration of listing agreement, broker introduces ultimate purchaser, whose initial offer is rejected. No broker follow up, but month later purchaser goes directly to seller and renews offer. Absent seller action in bad faith, the later sale to purchaser does not entitle broker to commission.

46. Cooper Square Realty v. A.R.S. Management (181 A.D.2d 551) exclusive listing agreement unenforceable due to absence of agreement on amount of commission. There was no objective formula provided for determining the commission.

47. Ackerman v. Dobbs (181 A.D.2d 704) after expiration of 90 day listing, seller sells to buyer who had discussed transaction before the exclusive listing was granted. Court rules such buyer was not "a person that was shown the property during the term of this agreement." Broker not the procuring cause and had not shown the property during the term of the listing.

48. Hofman Realty v. Capitol Plastic Cloth Mfg. (181 A.D.2d 760) broker loses as fails to make prima facie showing that sale took place during period when exclusive right to sell was in effect.

49. Gordon Co. v. TPD Corp. (182 A.D.2d 516) summary judgment granted to broker under written contract, upon proof that the three contingencies were fulfilled.

50. Barclay v. Denckla (182 A.D.2d 658) summary judgment denied, on basis of fact question whether the plaintiffs, who were individually licensed as brokers, were partners and, as such, had to be licensed as a partnership before they could bring suit.

51. Panetta v. Tonetti (182 A.D.2d 977) recovery for "quantum meruit" cannot occur if there is express contract. Here, judgment for broker affirmed on contract basis, with recovery limited to trial court award (due to failure to cross-appeal: affirmance on other ground limits plaintiff to trial court award).

52. U-Buy Realty v. Aliota (151 Misc.2d 485) listing broker retained by one co-owner. Broker's knowledge of co- ownership is key factor. There is no requirement that the broker verify ownership of the property listed with him. If the broker actually knows that there are other owners who may not acquiesce in the sale, the broker acts at his peril, notwithstanding production of a ready, willing and able buyer. If the broker does not know of co-owners or is advised that all co-owners join in the sale, the co-owner who retained the broker will owe a commission when a ready, willing and able buyer is produced.

53. Zucker Co. v. Lieberman (183 A.D.2d 553) 1% commission on obtaining mortgage commitment "in accordance with the application" and "subject to lender's usual terms and conditions." Borrower can refuse loan due to numerous additional conditions, beyond "customary closing requirements."

54. Pacifico v. Plate (183 A.D.2d 986) summary judgment for broker affirmed, where agreement executed during "broker protection period" (here a lease with option to purchase, as well as a purchase agreement).

55. Brodsky v. Gazzola (183 A.D.2d 1051) summary judgment dismissing broker's complaint affirmed, where purchase agreement was expressly conditioned on subdivision approval, which contingency was not fulfilled. Notwithstanding the non-occurrence of a condition precedent to the collectability of a brokerage commission, the seller may be liable therefore nonetheless if it can be established that he is responsible for the failure of the condition.

56. Gottlieb v. Laub & Co. (82 N.Y.2d 457) common law contractual remuneration claim regarding commission of departed sales associate. Court of Appeals holds that claim of wilfully withholding commissions (Labor Law §198[1-a]) does not apply. There is no attorney fee remedy for a common law contractual claim. Under parties’ agreement, broker had authority to determine the personnel to conduct transaction or to reasonably reduce the split to reflect the sales associate’s actual contribution if others are involved. Sales associate is not entitled to attorney fees due to the withholding of commissions owed (Labor Law §198[1-a]), because there is no claim of a violation of Labor Law Article 6 requiring wage payment and minimum wage.

57. Miller Org. v. Vasap Constr. Corp. (184 A.D.2d 763) verdict for balance of real estate commission affirmed, where broker procured 10 year lease pursuant to oral contract which was made after expiration of 1 year written exclusive agency agreement. Payment of commission not conditioned upon payment of the rent and agreement is not void due to claim of 10 year payment schedule. Full commission is due.

58. Bersani v. Basset (184 A.D. 996) summary judgment for broker reversed and matter remitted for trial; brokerage commission conditioned upon passage of title; initial contract falls through; question of fact which broker was procuring cause of subsequent, modified contract which closed, or whether chain of circumstances broken by failure of first contract; RPL §442-d license requirement satisfied if broker was licensed at time services were rendered doesn't need to be licensed at time of closing.

59. Roberts v. Gin Realty Corp. (185 A.D.2d 209) reversal of grant of summary judgment for defendant seller; question of fact presented whether defendant withdrew property from the market after all essential terms were agreed upon as well as buyers financial ability and seller's bad faith in withdrawing property shortly after purchase terms were agreed to.

60. All Indus. Real Estate Corp. v. Northgate Plaza (186 A.D.2d 103) denial of summary judgment for broker reversed and summary judgment granted as to one defendant; all conditions precedent to payment of commissions for lease were fulfilled.

61. Cornelia and Broad Sts. v. Chase (186 A.D.2d 341) summary judgment for broker affirmed; commission earned when produced ready, willing and able buyer; no evidentiary support for claim of "when, as and if title passes" or broker misconduct; defendants inability to reduce or release liens on property is irrelevant.

62. Gerald Syndicate v. Kaye Realty Associates (187 A.D.2d 389) broker not entitled to commission for negotiation of renewal leases where commission agreement is limited to "new leases initiated by the agreement."

63. Sutton and Edwards v. Samuels (187 A.D.2d 501) denial of summary judgment for broker reversed and summary judgment granted as to one defendant; broker makes sufficient showing of tortious interference with brokerage contract, produced a ready, willing and able buyer and, but for defendant's conduct, it would have earned a commission.

64. Trylon Realty v. Roth (187 A.D.2d 715) on appeal summary judgment for defendant granted dismissing commission claim regarding sale of Co-op apartment. Broker had listed apartment for sale or for rent, collected commission for rental from tenant, but could not collect commission from tenant for his purchase of the unit, due to dual agency without informed consent.

65. ERA Joseph Green Real Estate v. Daubert (186 A.D.2d 885) summary judgment dismissing broker complaint affirmed, broker aware of title defects and no meeting of minds on all essential terms; mere introduction not amounting to "procuring cause" regarding separate transaction.

66. Sternberg, Inc. v. Walber 36th St. Assocs. (187 A.D.2d 225) claims remanded for further proceedings where contract provides for specified commission of sale at particular price, but silent as to commission if sale at lesser price; broker may proceed with claim in quantum meruit and is not barred by doctrine of election of remedies.

67. Kornreich & Sons v. Goldsmith Murphy (156 Misc.2d 207) corporation must have license in order to collect commission (RPL §442-d); exemption for attorneys is personal and fact that corporate officer is attorney does not allow corporation to collect.

68. Fidelity Bus. Brokers v. Gamaldi (190 A.D.2d 709) absence of written agreement does not preclude recovery of damages by licensed broker for breach of contract or for quantum meruit (Gen. Ob. Law, §5-701[a][10]); questions of fact preclude grant of summary judgment.

69. Rennert Diana & Co., Inc. v. Ziskind (191 A.D.2d 545) exclusive right to sell agreement enforced upon non-jury trial where transaction consummated within 6-month "broker protection period." Negotiation for the property took place within the listing period and seller failed to refer all potential customers to the listing broker.

70. Welch Real Estate v. Heritage Broadcasting Corp. (192 A.D.2d 891) trial court judgment for broker reversed on appeal as commission entitlement was conditioned on passage of title. Here, while buyer failed to timely notify the seller of his inability to obtain mortgage financing, the fact remains that the transaction did not close.

71. Friedland Realty v. Modern Cabinets Corp. (194 A.D.2d 656) complaint dismissed where commission conditioned upon passage of title and plaintiff broker failed to prove that owner had willfully defaulted in complying with a legally enforceable contract to convey the property.

72. First Development Corp. v. Plainview Realty Associates (194 A.D.2d 711) summary judgment for defendant reversed, as question of fact exists whether the brokerage commission agreement required plaintiff broker to look "solely to" one co-defendant or could pursue both entities.

73. Saxon Capital Corp. v. Wilvin Assoc. (195 A.D.2d 429) summary judgment for broker reversed, questions of fact exist as to commission entitlement; document drafted by broker construed against draftsman; lack of integration clause permits use of extrinsic evidence re: alleged condition.

74. Brown & Son Realty v. Greenberg (195 A.D.2d 583) broker causes suit against buyer and seller; summary judgment granted to buyer, as no contractual relationship; question of fact as to procuring cause re: seller.

75. Douglas, Payton & Company v. Wire Assoc. (197 A.D.2d 559) summary judgment for landlord affirmed without merit since plaintiff failed to establish that proposed tenant was "ready, willing and able" to lease premises; plaintiff was not "procuring cause" of lease since he did little more than bring subject premises to the attention of tenant.

76. Lansco Corp. v. World Zionist Org. Am. Section (198 A.D.2d 176) summary judgment for tenant reversed on listing broker's claim for interference with contract; broker never claimed to be tenant's agent, thus no defense of undisclosed dual agency; broker properly sought to memorialize its role in procuring tenant.

77. Bernstein v. Sosnowitz (198 A.D.2d 204) summary judgment for co-broker affirmed; ambiguity in co-brokerage interpreted against draftsman.

78. ERA Hamlet Realty v. Meola (198 A.D.2d 471) sanctions awarded against frivolous commission claim. Broker is not entitled to commission on sale negotiated after term of his employment; sanctions also to be awarded for frivolous appeal.

79. Miller v. Bryce Real Estate (198 A.D.2d 589) summary judgment properly denied prior to discovery against brokerage firm and purchaser for non-disclosure and fraudulent acts where property promptly relisted and sold at profit; no course of action for quadruple damages under RPL §442-e(3) as broker was licensed; sanctions awarded for frivolous litigation practices.

80. Sauerhoff-Kessler Realty Corp. v. Roma Shopping Plaza (201 A.D.2d 477) summary judgment for broker affirmed; claim of breach of fiduciary duty by procuring insolvent, non-viable tenant rejected.

81. Schuckman v. Sayville Plaza Dev. Co. (201 A.D.2d 638) complaint to recover brokerage commission dismissed; personal agreement between deceased partner and plaintiffs; defendants had not authorized plaintiffs to act as broker; no apparent authority on behalf of partnership.

82. Currier & Lazier Agency v. Lemko Resort (199 A.D.2d 953) complaint to recover brokerage commission dismissed; binder contemplated a more formal agreement; no proof as to subsequent stock purchase agreement that purchaser was ready, willing and able.

83. Matter of Kavan v. Shaffer (199 A.D.2d 1089) salesperson violates RPL §442-a and 175.21, by receiving commissions directly from clients; assignment of claim for commission is prohibited, as the parties are not licensed brokers.

84. Handford Prop. v. Richmond Hill Sav. Bank (202 A.D.2d 349) summary judgment in favor of defendant bank dismissing broker's first and second causes of action affirmed, where broker failed to demonstrate its right to a commission; under exclusive agency agreement, bank had no duty to identify to plaintiff broker a potential buyer to whom it was introduced by someone else; no evidence that bank's rejection of potential buyer was based on bank's desire to avoid paying commission.

85. Mecox Realty Corp. v. Rose (202 A.D.2d 404) judgment in favor of plaintiff to recover brokerage commission affirmed, where broker earned commission when they produced a buyer who was ready, willing and able to purchase at the terms set by the seller.

86. Balog Realty Corp. v. East Coast Real Estate Developers (202 A.D.2d 529) defendant's appeals from lower court orders are dismissed, judgment in favor of plaintiff to recover brokerage commission affirmed. Here, the agreement gives plaintiff an exclusive right to sell, not merely an exclusive agency; thus entitles broker to commissions on all sales produced prior to the termination of the agreement, regardless of effort in procuring sales.

87. Cunningham v. Nugent Street Corp. (202 A.D.2d 649) order denying summary judgment for defendant reversed, broker's complaint dismissed. Agreement conditioned upon "if and when title passes", no deal ever materialized, thus seller free until then to negotiate with others without becoming liable for commission.

88. Coldwell Banker Residential Real Estate v. Berner (202 A.D.2d 949) summary judgment for defendant properly denied where record presents triable issues of fact as to commission entitlement for negotiating lease; ambiguity in brokerage agreement (regarding "procuring" of lease within 60 days) drafted by defendant/seller is resolved against draftsman (an attorney); questions of fact whether broker should forfeit commission because of failure to disclose material condition or dual agency.

89. Gross v. Valenti (202 A.D.2d 971) in action commenced to recover brokerage commission, trial court judgment in favor of defendant affirmed. Broker does not claim she was procuring cause of the purchase, instead argues that defendant deprived her of opportunity to earn her commission by terminating in bad faith. Even assuming valid brokerage agreement, defendant & the sellers were not "in the midst of negotiations instituted by [plaintiff]..", thus it is unnecessary to reach issue of defendant's bad faith.

90. Helmsley-Spear, Inc. v. Melville Corp (203 A.D.2d 517) In action for breach of oral brokerage agreement, order denying summary judgment for defendant reversed and broker's complaint dismissed. Broker's role of introducing property to defendant's attention and their unsubstantiated claim of defendant's promise to "recognize and protect" their interest is insufficient to demonstrate triable issue of fact. Dissent argues such promise raise triable issues of fact as to the existence of an oral agreement.

91. Pepitone v. Sofia (203 A.D.2d 981) proposed contract not binding until approved by attorneys; summary judgment in favor of buyer and seller on broker's cause of action for failure to pay commission upon transfer of title, where broker returned deposit and conceded sale agreement was terminated, thus relinquishing rights to recover.

92. Fogel v. Rob Realty (204 A.D.2d 135) verdict in favor of broker affirmed, broker produced buyer ready, willing and able; testimony of broker and employee was sufficient to show meeting of minds concerning price and financing terms.

93. Shepherd Real Estate v. Ferguson (204 A.D.2d 392) judgment granting defendant's motion for summary judgment and dismissing complaint affirmed; broker failed to produce buyer ready, willing and able; buyer and seller were unable to meet agreement on inclusion of clause in contract (regarding unlimited access to property prior to closing).

94. Heelan Realty & Dev. Corp. v. Skyview Meadows Dev. Corp. (204 A.D.2d 601) judgment dismissing complaint affirmed, contracts of sale conditioned upon buyers approval of changes to rider which required letter from Town Planning Bd.; seller's failure to obtain letter is not evidence of bad faith, even if letter produced, it would not have effectuated meeting of minds on all essential & customary terms.

95. French v. Ahlstrom (204 A.D.2d 861) summary judgment dismissing broker's commission claims and seller's claim of broker's breach of fiduciary duty; plaintiff demanded commission based upon purchaser proposal, there was no meeting of minds between purchaser and defendant re: essential terms of sale.

96. Sholom & Zuckerbrot Realty Corp. v. Citibank (205 A.D.2d 336) alleged oral brokerage agreement not within Statute of Frauds (GOL §5-701[a][10]); summary judgment in favor of Citibank reversed and broker's motion for certain discovery granted; issues of fact are raised as to whether binding oral brokerage agreement existed (notwithstanding that bank did not own property, its position was enhanced as mortgagee).

97. Lanstar Int. Realty v. New York News (206 A.D.2d 411) alleged oral brokerage agreement; summary judgment dismissing complaint affirmed, where totality of efforts of broker consisted of little more than bringing the property to the attention of defendants; no evidence that broker initiated any negotiations, discussed any basic material details, and that defendants ever promised to pay commission or that their conduct deprived broker of opportunity to earn commission; insufficient proof of existence of oral agreement or that broker was procuring cause of sale.

98. Mollyann, Inc. v. Demetriades (206 A.D.2d 415) alleged oral brokerage agreement; summary judgment dismissing complaint affirmed, where broker was not procuring cause of sale; plaintiff's sole efforts consisted of some brief contacts with sellers with regard to property and showing prospective buyers property; and best and only price offer obtained from prospective buyers was less than sellers asking price. Broker not direct and proximate link between introduction of sellers to buyers and consummation of sale. Different deal negotiated through different broker.

99. Sholom & Zuckerbrot Realty Corp. v. 101 Fleet Place Assocs. (206 A.D.2d 965) defendants' cross-motion for summary judgment reversed with costs and complaint reinstated; triable issues of fact with respect to entitlement to a broker's commission as a result of an implied contract. Defendants contend that broker merely introduced tenant, but plaintiff offered proof that owner stated it had another transaction in progress, but then contacted broker's customer without plaintiff's knowledge or consent and negotiated lease agreement. Owner may not terminate activities of broker in bad faith and as a mere device to escape payment of commission.

100. 2001 Real Estate: Space Catalyst v. DiBenedetto (207 A.D.2d 442) unclosed transaction; defendants' cross-motion for summary judgment dismissing complaint affirmed where broker failed to establish that he had procured prospect who has reached agreement with lessor on essential terms and is ready, willing an able to perform. While parties signed letter concerning some material terms to lease, they did not consider terms to be complete, final or binding.

101. Gurewitz v. Hunt Property Services (208 A.D.2d 590) - complaint for commission dismissed; open listing; no oral commission split agreement between salesperson and broker; no consideration for agreement not to interfere with marketing; no meeting of the minds.

102. Boyer Realty v. Perry (208 A.D.2d 1024) - summary judgment for commission affirmed; absent contrary agreement, commission is not dependent on performance of sales contract; commission earned when buyer produced who is ready, willing and able to purchase according to seller's terms.

103. Smith v. Walsh (209 A.D.2d 398) - summary judgment for broker affirmed; absent contrary agreement, commission is not dependent on performance of sales contract; commission earned when buyer produced who is ready, willing and able to purchase according to seller's terms.

104. Ryan v. Bettoil (211 A.D.2d 844) - commission not earned when commission agreement only entitles broker to a commission if property sold, not leased; to prevail on theory of quantum meruit, broker must demonstrate he was the procuring cause of lease.

105. Curtis Properties Corp. v. Greif Companies (212 A.D.2d 259) - lease; exclusive agency agreement; written commission agreement terminated; recovery allowed under quantum meruit for implied contract; commission entitlement under implied contract where broker brought parties together; party may not frustrate the performance of an agreement by bringing about the failure of a condition precedent; court will not imply exclusive right to deal absent express language.

106. Quantum Realty Services, Inc. v. ISE America, Inc. (214 A.D.2D 420) non-jury trial judgment in favor of broker for commission affirmed; broker entitled to commission where seller terminates broker's services in bad faith; limited interruption in sequence of events did not diminish broker's participation in the procurement of the buyer; broker not obligated to accept reduced commission based upon contractual provision therefore in the event of an expeditious closing where same did not occur.

107. Fitzgibbon v. Abatelli Real Estate (214 A.D.2D 642) non-jury trial judgment in favor of salesperson against broker for commission is reversed; brokerage agreement between unlicensed salesperson and another salesperson who was operating a branch office purportedly on behalf of licensed broker pursuant to 19 NYCRR 175.20(b) is unenforceable, as a plaintiff salesperson must be licensed and may only demand compensation from a duly licensed real estate broker with whom he or she is associated (RPL §442-a). Salesperson failed to establish that she was a licensed real estate salesperson associated with a licensed broker; salesperson's only recourse for compensation from the broker upon the theory that branch office "managing" salesperson had actual or apparent authority fails where no actual authority existed and there could be no reasonable reliance upon apparent authority; 19 NYCRR 175.20 designed to protect public, not real estate salespersons.

108. U.S. No. 1 Laffey Real Estate v. Hanna (215 A.D.2D 552) non-jury trial judgment in favor of broker for commission reversed; no commission is due to broker pursuant to an exclusive agency agreement where evidence established that although seller accepted offer from buyer who was found by another broker, the listing broker seeking commission had knowledge of the offer which pre-dated its brokerage agreement and that prior offer had been exempted from the plaintiff's listing agreement.

109. Levy v. Friedman (216 A.D.2D 18) order granting summary judgment dismissing broker's complaint affirmed; commission due upon title actually closing; broker's claim of seller/client's willful default under contract of sale hasno merit where seller did not enter into contract of sale and therefore could not willfully default.

110. Brown, Harris, Stevens Co. v. May Co. (216 A.D.2D 145) trial court properly set aside jury verdict for broker where broker protection clause in exclusive brokerage agreement required on-going negotiations with the ultimate purchaser for entitlement to commission and there was no evidence at trial that such condition was met.

111. Day Realty v. Spiegel (216 A.D.2D 241) order granting broker's motion for summary judgment reversed; issue of fact raised precluding summary judgment as to whether or not commission agreement conditioned the earning of the commission upon the closing of the sales transaction.

112. J.E. Horan Duffy Realty v. Brighton (216 A.D.2d 358) broker's commission is earned under an exclusive right to sell listing agreement which provided the commission was owed if the purchaser of the property had negotiations with the seller or broker during the term of the agreement, regardless of when actual sale took place and if broker was the procuring cause of the sale, where facts are undisputed that purchasers were introduced to seller during exclusive listing term and negotiated with seller during the term.

113. Cushman & Wakefield v. 214 East 49th Street Corp. (218 A.D.2d 464) - non-jury trial dismissing broker’s complaint for commission affirmed; commission not earned by broker where brokerage agreement merely required broker to submit listed property to the ultimate purchaser during the term of the brokerage agreement where property was submitted by another to the ultimate purchaser prior to the brokerage agreement and therefore broker’s providing comparative cost studies to ultimate purchaser during the term of the brokerage agreement wasresubmittal of property to ultimate purchaser; in absence of meeting conditions of brokerage agreement, broker could only earn commission if it satisfied the common law requirement that it achieve a meeting of the minds between the seller and the purchaser on all the essential terms and conditions of the purchase; broker failed to establish a proximate link between the bare introduction of the parties and the consummation of the transaction;procuring causecondition to commission entitlement.

114. Hampton Realty v. Conklin (220 A.D.2d 385) - issues of justifiable reliance and reasonable inquiry; motion for a leave to appeal denied (87 N.Y.2d 805); non-jury trial judgment in favor of broker for commission reversed; broker not the procuring cause where purchaser and seller discussed availability of property prior to listing and where broker did nothing of any significance to assist in the negotiations between buyer and seller aside from a single visit to the property; facts of the case do not support oral promise to “protect” the broker’s commission; reasonable duration for term of brokerage agreement implied where agreement contained no term as to its duration and, under the circumstances of the case, it would not be reasonable to extend the duration of the agreement for a term of more than one year.

115. Green Realty Corp. v. Polidori (224 A.D.2d 384) - summary judgment on issue of seller’s liability granted to broker for commission where broker procured a buyer who was ready, willing and able to purchase property and listing agreement identified broker as sole broker; issue of fact exists as to amount of commission.

116. Willig & Assoc. Inc. v. Benequista (227 A.D.2d 833) - broker entered into listing agreement with principal unaware that principal was mere tenant with leasehold option to purchase; sale by true owner within term of listing; summary judgment for principal denied as principal fails to meet burden to establish entitlement to judgment as a matter of law.

117. Williams Real Estate v. Viking Penguin, Inc. (228 A.D.2d 233, leave to app. den. ____N.Y.2d_____) - oral exclusive agreement to protect broker; summary judgment to dismiss broker’s complaint denied where broker alleged oral exclusive agreement to protect broker and broker established it performed more than a mere introduction of the property to tenant; issues of material fact exist as to terms and existence of oral exclusive agreement to protect broker; broker need not be procuring cause where nature of alleged breach is preventing broker from becoming procuring cause.

118. Reilly & Co. v. Rockefeller Ctr. Mgt. Corp. (223 A.D.2d 477) - broker does not earn commission by mere introduction of tenant to property; mere introduction is insufficient to be procuring cause; must be procuring cause of lease to be entitled to commission.

119. Agawam Realty v. Haggerty (223 A.D.2d 518) - summary judgment for broker’s commission reversed; material issues of fact exist as to whether broker procured a buyer who was ready, willing and able to purchase; seller accepts second offer after initial buyer failed to sign contract and tender deposit within 8 days of receipt of contract which was based on terms of offer made by buyer in Purchase Memorandum; issue of fact as to whether buyer was willing to purchase as measured by whether buyer was provided reasonable time to sign contract and tender deposit; dissent finds broker earned commission prior to seller’s determination buyer was unwilling to purchase.

120. Chappo & Co. v. Riley Co. (225 A.D.2d 468) - real estate broker’s license required to negotiate mortgage loan on real property (not otherwise exempted by statute); broker’s license required to maintain action for a commission pursuant to RPL §442-d; characterization of transaction as “lease-backed note transaction” does not change true nature of transaction as a mortgage loan and therefore does not remove transaction from licensing requirement of RPL §440.

121. Peterson Real Estate v. Krantz (226 A.D.2d 1079) - denial of broker’s motion for summary judgment for commission affirmed; listing agreement entitles broker to commission if, during protection period, property is sold to party who inspected it during term of listing; question of fact exists as to whether purchaser “inspected” property during listing term.

122. Sylvan Lawrence Co. v. Mutual of Amer. Life Ins. Co. (221 A.D.2d 239, mot. for leave to app. den. 88 N.Y.2d 804) - mere introduction by broker of tenant to subject premises does not entitled broker to commission; tenant had no duty to inform broker of subsequent purchase in absence of contractual obligation or fiduciary duty.

123. Kaplon-Belo Assoc. v. Farrelly (221 A.D.2d 321) - summary judgment granting broker’s commission affirmed; broker entitled to commission when procures tenant ready, willing and able to lease on terms acceptable to lessor; lessor’s execution of lease with procured tenant entitles broker to commission notwithstanding tenant’s default under lease shortly after its execution; agent for an undisclosed or unidentified principal is individually liable on contract signed by agent without disclosing his agency

124. B & H Assoc. v. Buscemi (229 A.D.2d 456) - summary judgment for broker granted where broker establishes that they produced a purchaser who was ready, willing and able to purchase property on buyer’s terms.

125. Hagedorn v. Elwyn (229 A.D.2d 654) - judgment of Supreme Court granting real estate brokerage commission affirmed; broker is procuring cause and there is a direct and proximate link between bare introduction of buyer and seller and consummation of the sale where broker remained in contact with buyer over five month period, providing buyer with information relevant to the property; broker need not be present during negotiations, especially where buyer and seller exclude broker from negotiations in an attempt to avoid paying commission.

126. Romeo v. Schmidt (229 A.D.2d 992) - order denying summary judgment dismissing broker’s cause of action reversed; broker (law firm) not entitled to a broker’s commission as a matter of law where retainer agreement provided that a commission would be payable to the firm if the firm produced a ready, willing and able buyer; buyer produced by firm was unable to come to terms with seller; for same reason, broker cannot recover a commission on a theory of quantum meruit.

127. Mucci v. Munsey Park Assoc. (231 A.D.2d 501) - broker not entitled to commission; commission agreement provided that broker would only be entitled to a commission in the event that buyer exercised an option to purchase subject property and take title thereto; buyer neither exercised said option nor acquired title to the property; unavailing that purchaser had the same principals; broker’s claim for recovery in quasi-contract fails where there is a valid and enforceable written contract governing the particular subject matter.

128. Century 21 Volpe Realty v. Jhong Kim (231 A.D.2d 667) - broker entitled to real estate commission where seller entered into a valid and enforceable contract for sale of property and then willfully breached the agreement, causing the failure of the transfer of title to the property; agreement satisfies statute of frauds.

129. Mautner - Glick Corp. v. Dime Savings Bank (232 A.D.2d 235) - broker not entitled to commission where buyers introduced by broker elected not to sign sales contract and therefore were not ready, willing and able buyers; broker not entitled to commission where same buyers successfully bid for same property at a foreclosure sale the next day; broker bound by brokerage agreement signed by its agent; broker not entitled to commission where brokerage agreement conditioned entitlement to a commission upon the buyers’ execution of an assignment agreement and the assignment actually being made where neither condition is fulfilled.

130. Old Oak Realty v. Polimeni (232 A.D.2d 536) - denial of motion for partial summary judgment dismissing broker’s claims to a brokerage commission reversed; there is a notation precluding broker’s claim for balance of commission due where broker’s president accepted the tender of a check and note for less than the full brokerage fee and endorsed the note as “paid in full”.

131. Praedia Realty Corp. v. Durst (233 A.D.2d 380) - order granting buyer’s motion for summary judgment dismissing broker’s complaint affirmed; broker was hired by seller to find a purchaser for the premises; contract between broker and buyer will not be implied in fact where facts are inconsistent with its existence; order granting selling broker’s motion for summary judgment dismissing broker’s complaint affirmed; in the absence of an agreement with the buyer, conduct on the part of selling broker cannot be the proximate cause of seller’s broker’s failure to collect a commission from buyer; broker not entitled to commission where at time broker negotiated selling price, buyer was not ready, willing and able to purchase at the terms set by the seller.

132. American Corporate Real Estate v. Lifetime Hoan Corp. (233 A.D.2d 413) - broker not entitled to commission where building ultimately purchased by buyer was not available for purchase when broker introduced buyer to building; under facts of the case, broker’s allegation of oral exclusive broker’s agreement is insufficient to warrant denial of buyer’s motion for summary judgment.

133. Century 21 A.L.P. Realty v. South Central Plaza (173 Misc.2d 72) - exclusive listing agreement with temporary receiver during foreclosure proceeding entitling broker to annual commissions on lease payments received by the receiver or his successors in interest is not enforceable against purchaser at foreclosure sale; receiver may not enter into contracts which may endure past the termination of the receivership without court approval; broker had knowledge he was entering into an agreement, not with the owner, but with a temporary receiver with limited powers during the pendency of a foreclosure sale; receivership terminates upon foreclosure sale and therefore, purchaser at sale is not a successor to receivers’ interest.

134. Werner v. Katal Country Club (234 A.D.2d 659) - broker may recover a commission in the absence of being the procuring cause in a transaction where the seller terminates the broker’s activities in bad faith and as a mere device to escape the payment of the commission; triable issue of fact exists as to seller’s bad faith where seller engaged in direct negotiations with buyer and withdrew proposed contract indicating broker was the procuring cause and inserting himself as procuring cause after broker refused to reduce his commission; cause of action against attorney under Judiciary Law §487(1).

135. Moore & Moore Real Estate v. Aloi (234 A.D.2d 683) - non-jury trial judgment dismissing broker’s complaint affirmed; broker not entitled to selling broker’s commission pursuant to multiple listing agreement offering commission to broker who is the procuring cause where there was no meeting of the minds between buyer and seller as to material issue (closing date); no credible evidence that sellers acted in bad faith; no evidence that purchaser had financial availability to complete the transaction.

136. Sylvan Lawrence Co. v. Pennie & Edmonds (235 A.D.2d 215) - order granting motion for summary judgment dismissing complaint modified; broker given a written exclusive brokerage agreement to find to new leasehold space for tenant; during term of exclusive, tenant renegotiates current lease through another broker paid by landlord; causes of action for breach of contract and tortious interference with contract reinstated where questions of fact exist as to actions of tenant and cause for breach.

137. Buck v. Cimino (243 A.D.2d 681) - broker is procuring cause of sale where broker set in motion the chain of circumstances which proximately led to the sale; not necessary for broker to have been involved in the negotiations of sale where lack of involvement is attributable to buyer, a licensed real estate broker, who used her knowledge as a broker to affirmatively mislead broker into believing she lacked any interest in the property; broker is proximate link where broker introduced buyer to the property, brought buyer to the property, the buyer and seller engaged in minimal negotiations and the contract of sale was executed soon after broker’s introduction of buyer to the property (approx. 10 days).

138. Schuckman Realty v. Marine Midland Bank (244 A.D.2d 400) - broker not entitled to recover a commission from defendant under contract theory where broker entered into brokerage agreements with parties other than the defendant; broker’s claim against defendant in quantum meruit fails due to the existence of a valid and enforceable agreement governing the particular subject matter (i.e., commission agreement between broker and other parties).

139. Curtis Properties Corp. v. Greif Companies (236 A.D.2d 237) - cause of action in quantum merit reinstated (see, Curtis Properties Corp. v. Grief Companies [212 A.D.2d 259]); broker engaged as exclusive buyer’s agent; broker may proceed both on breach of contract and quasi-contract theories where there is a bona fide dispute as to the existence of a contract or the contract does not cover the dispute in issue; quantum meruit recovery is proper where the defendant wrongfully has prevented the plaintiff’s performance of a written agreement; broker negotiated lease terms for principal with a third party which principal used to negotiate their own lease terms with their current landlord.

140. Goldsmith Murphy, Inc. v. New York City Economic Development Corp. (236 A.D.2d 339) - summary judgment motion to dismiss broker’s complaint denied; issue of fact exists as to whether broker was procuring cause of tenancy.

141. Cutler v. Tommy Hilfiger U.S.A. (237 A.D.2d 193) - non-jury trial awarding brokerage commission unanimously affirmed; broker established that she had shown apartment to defendant, he agreed to pay her a brokerage fee, shortly thereafter the broker indicated to him through his business agent that the apartment was available at his price and he subsequently purchased the apartment through the corporate defendant; joint and several liability was proper of the individual and corporate defendant.

142. First New York Realty Co., Inc. v. DeSetto (237 A.D.2d 219) - summary judgment for broker reversed; issue of fact exists as to payment schedule of agreed-upon commission pursuant to oral brokerage agreement.

143. M.A. Salazar, Inc. v. Levy (237 A.D.2d 583) - summary judgment granted dismissing broker’s complaint for brokerage commission; broker fails to allege that the parties agreed on terms customarily encountered in a real estate transaction and in the absence of such agreement on essential terms, the broker did not earn commission; mere agreement as to price on a proposed sale does not constitute a meeting of the minds of buyer and seller and therefore broker is not procuring cause.

144. Harvard Associates, Ltd. v. Hayt, Hayt & Landau (238 A.D.2d 378) - summary judgment to dismiss broker’s claim for breach of contract denied where issue of fact exists as to whether or not broker was the procuring cause of re-negotiated lease; contract provision obligates the party to protect and preserve the broker’s right to recover any earned commission from the owner.

145. Boyer v. Werner (238 A.D.2d 853) - plaintiff broker seeks commission due from defendant broker for referral of purchaser for golf course property; purchaser ultimately purchases golf course property plus second golf course; plaintiff broker seeks commission for referral fee for purchase of both golf courses; summary judgment granted as to the issue of defendant broker’s liability in relation to the sale of the first golf course only; issue of fact exists as to referral of purchaser for second golf course and as to the amount of the commission split due (see also, Werner v. Katal Country Club [234 A.D.2d 659]).

146. Syragakis v. Majestic Associates (240 A.D.2d 561) - non-jury trial in favor of broker affirmed; broker is entitled to a commission upon procuring a ready, willing and able buyer on terms acceptable to seller; defendant’s assertion that the broker was only due a commission upon the closing of title fails.

147. Namazi Real Estate Corp. v. Johnson (243 A.D.2d 396) -- broker’s motion for summary judgment denied and defendant’s cross-motion for summary judgment dismissing the complaint affirmed; broker failed to establish they produced a buyer ready, willing and able to purchase the property at terms set by sellers; parties were not in agreement as to the closing date, the clause entitling defendants to terminate the contract unconditionally, and the date when the defendants would vacate the premises; broker failed to establish that sellers wrongfully or arbitrarily prevented completion of a deal.

148. SageGroup Associates v. Dominion Textile (USA) (244 A.D.2d 281) -- the “able” prong of the ready, willing and able test refers to the prospective subtenant’s financial ability; although broker established he procured a prospective subtenant ready, willing and able to sublet on terms set by the prospective sublessor, the parties’ disagreement as to the terms of their oral agreement raised triable issues of fact precluding summary judgment in favor of either party; no cause of action exists in quantum meruit, unjust enrichment and account stated where there is an express contract governing the broker’s right to a commission; broker lacks standing to claim tortious interference with contract against landlord for refusal to grant tenant permission to sublease because broker is neither a party to nor an intended beneficiary of the sublease rejected by the landlord.

149. Hill Realty Services v. Cummings (244 A.D.2d 525) -- owner’s cross-motion for summary judgment granted and affirmed where broker produced two purchasers for owner’s property but there was never a meeting of the minds as to several material terms of the sale; broker failed to proffer evidence raising a triable issue of fact as to allegations of seller’s bad faith.

150. Gordon Company v. Peninsula New York Partnership (245 A.D.2d 189) -- judgment in favor of broker affirmed where, although exclusive right letter agreement expired and the parties did not intend to extend the terms of that agreement, precluding broker contract damages under the letter agreement, broker continued to perform services on behalf of owner. After expiration of agreement, trial court had ample basis for finding that broker was the procuring cause of the lease that was subsequently consummated and properly awarded recovery in quantum meruit.

151. Rakow v. Leinstone (245 A.D.2d 556) -- broker fails to demonstrate that he earned a commission as the procuring cause of the lease, and there was no evidence of any agreement to pay a commission.

152. Balfour v. Passarelli (245 A.D.2d 720) -- during period of exclusive right to sell listing agreement with owner of building lots, broker procured memoranda agreement from three buyers wherein the buyers and owner agreed to execute a construction contract at a later date beyond the expiration of the listing agreement; upon buyers’ fulfillment of their obligations to enter into subsequent construction contracts, broker was entitled to her commissions.

153. Cushman & Wakefield v. Northeastern Industrial Park (246 A.D.2d 303) -- owner is liable for brokerage commission stipulated in commission agreement notwithstanding that it is not a party to either the renewal lease procured by broker or the prior lease, where owner identified itself in the commission agreement as the landlord of the premises, and, throughout the lease negotiations and continuing even after broker first demanded its commission, consistently held itself out as one in the same as the company identified in the lease as the landlord; commission agreement clearly requires payment of the full term commission at the commencement of the lease should the lease, as it does, require the tenant, should elect to cancel, to reimburse the landlord for the portion of the commission attributable to the cancelled term.

154. Dwelling Quest Corp. v. Greater New York Savings Bank (246 A.D.2d 431) -- broker fails to establish commission entitlement where unsigned writing prepared by broker stating that its commission shall only be due if its prospect completes and closes the transaction, while not constituting the parties’ agreement, is deemed to be conclusive evidence of such agreement in the absence of credible explanation why broker sent such a writing if it did not reflect the parties’ agreement; moreover, owners ultimately accepted all cash offer from party not presented by broker.

155. Geraci v. Creative Leasing Concepts (248 A.D.2d 214) -- credible evidence established that broker procured a ready, willing and able buyer who had agreed to the seller’s time of the essence clause; consummation of the sale, in the absence of an agreement to the contrary, was not a condition precedent to broker’s entitlement to a commission.

156. Yustman Associates v. Berman (248 A.D.2d 284) -- motion to dismiss broker’s complaint affirmed where complaint fails to allege a brokerage agreement between the parties and therefore does not state a cause of action.

157. Goldsmith v. J.I. Sopher & Co., Inc. (249 A.D.2d 232) - salesperson’s right to commissions or supplemental commissions (management or override commissions) governed by special agreement between salesperson and broker and not due, as they were not “collected” prior to termination of salesperson.

158. Wallice v. Waterpointe at Oakdale Shores, Inc(249 A.D.2d 383) - summary judgment dismissing broker’s complaint for commission affirmed where evidence shows that defendant neither engaged the services of the broker nor agreed to pay him a commission.

159. Pantigo Realty, Inc. v. Estate of Steven Schrenko (249 A.D.2d 525) - summary judgment dismissing broker’s complaint for commission affirmed where brokerage agreement specified that it was not an “exclusive right to sell,” that the broker was not entitled to a commission until title to the property was transferred to a buyer procured by the broker and, further, that the seller has a right to sell without the involvement of the broker without liability for commission; title never transferred to the proposed buyer procured by the broker.

160. Helmsley-Spear, Inc. v. 150 Broadway N.Y. Assoc., L.P. (251 A.D.2d 185) - oral nonexclusive agreement with the landlord to find tenant; mere introduction of the parties or of the tenant to the property does not entitle broker to a commission; no proximate link between the broker’s efforts and the consummation of the transaction where lease not executed until after landlord retained two different brokers and more than a year elapsed after plaintiff broker ceased to make any substantive efforts; broker fails to recover on theory that landlord prevented him from procuring the lease in bad faith, inasmuch as broker’s efforts were not about to prove effectual at the time they ceased, approximately two years before the lease was executed; broker’s cause of action against the prospective tenant for tortious interference with its contractual relations with the landlord is without merit, as there is no evidence that landlord breached any contract it had with the broker.

 

161. Williams Real Estate Co., Inc. v. Ann Taylor, Inc. (251 A.D.2d 230) - no basis upon which to seek a brokerage commission where exclusive brokerage agreement did not contain a protection period and first substantive negotiations occurred a year and a half after expiration of the exclusive brokerage agreement; broker’s claim for commission against tenant fails where exclusive brokerage agreement provides that broker would seek a commission only from landlord of the premises; broker fails on procuring cause standard where there is no evidence the broker brought the parties together on mutually agreeable terms; no evidence presented that tenant acted in any manner to deprive broker of a rightful commission.

162. Cook/Pony Farm Real Estate, Inc. v. Sullivan (251 A.D.2d 444) - broker earned its commission by procuring a buyer who was ready, willing and able to purchase owner’s property in accordance with owner’s terms.

163. Jacob v. O’Brien (252 A.D.2d 515) - summary judgment dismissing broker’s complaint affirmed; owner’s proof sufficient to make out a prima facie case that there was no meeting of the minds as to the sale of owner’s residence.

164. Gershner v. Sisca (____ A.D.2d ___, 677 N.Y.S.2d 605) - denial of landlord’s motion for summary judgment dismissing broker’s claim affirmed; question of fact exists as to whether there was an agreement to provide brokerage services with respect to negotiating a new lease for an expanded store and whether the broker was excluded from the negotiations in bad faith as a mere device to escape payment of the commission.

165. Glanzer v. Bailey (254 A.D.2d 91) - broker fails to establish it is procuring cause of ultimate sale; although broker introduced prospect to the seller, arranged meetings between them and provided prospect with sample draft contract of sale, prospect never made an offer to purchase the property even though the prospect ultimately participated in the participation as a 10% partner in the purchasing entity.

166. Parkway Group Ltd. v. Modell’s Sporting Goods (254 A.D.2d 338) - summary judgment dismissing broker’s complaint affirmed; letter agreement between broker and owner providing for commission in the event that a certain sublease was entered into does not, as a matter of law, constitute an exclusive agency or exclusive right to negotiate with all other potential sublessors; broker not the procuring cause of the ultimate lease transaction; purported agreement was not enforceable as it provided for a commission “at a rate to be negotiated,” which amounts to an unenforceable agreement agree; broker also abandoned transaction.

167. Realty Investors of USA, Inc. v. Bhaidaswala (254 A.D.2d 603) - order dismissing broker’s complaint reversed; listing agreement entitling broker to a commission in the event that broker procures a purchaser on terms specified therein or any other terms acceptable to owner not dependent upon the execution of a legally enforceable sales contract, so long as the seller and buyer have come to a meeting of the minds on the essential terms of the transaction.

168. Prime City Real Estate Co., Inc. v. Hardy (256 A.D.2d 80) - broker entitled to commission upon production of a ready, willing and able buyer on terms acceptable to the seller; principals agreed on the essential terms of the transaction; seller’s receipt of a subsequent higher offer did not entitle them to avoid paying brokerage commission by refusing to negotiate the remaining details of the sale that the buyer broker procured.

169. William Towne Assoc., Inc. v. Pegasus Const., Inc. (257 A.D.2d 444) - broker entitled to 50% of one full commission upon finding of fact that there were two procuring brokers; broker entitled to interest and future commission in the event of renewal of lease based upon brokerage agreement.

170. Helmsley-Spear, Inc. v. New York Blood Center, Inc. (257 A.D.2d 64) - broker entitled to summary judgment where contract of sale acknowledged that broker was the procuring cause in the transaction, thereby leaving no factual issues to warrant denial of summary judgment.

171. Sharon Ava & Co., Inc. v. Olympic Tower Assoc. (259 A.D.2d 315) - plaintiff fails to establish that it was licensed at the time it procured lease transaction and is barred by RPL §442-d from commencing action to recover commission; fact that corporate plaintiff’s president was licensed broker at the time of the transaction does not save the cause of action on behalf of the unlicensed corporation.

172. Getreu v. Plaxall, Inc. (261 A.D.2d 574) - broker was procuring cause for two lease transactions where broker initiated telephone conversations, maintained written correspondence, arranged and attended meeting between the landlord and prospective tenant, thereby generating a chain of circumstances ultimately leading to the leases, and his continued efforts to keep the deal alive

173. Eastern Consolidated Properties, Inc. v. Adelaide Realty Corp. (261 A.D.2d 225; aff’d 95 N.Y.2d 785) - agreement that brokerage commission would be due and payable if and when title passes, except for the willful default of the seller; the broker is entitled to a commission only if the seller and the broker’s prospective buyer have actually entered into a sales contract; the seller’s fault or default within the meaning of the rule would have reference solely to a breach of the sales contract (citing, Graff v. Billet [64 N.Y.2d 899]); Court of Appeals upholds and reaffirms the decision in Graff v. Billet under the doctrine of stare decisis

174. Goldstein v. Ballirano (262 A.D.2d 529) - dismissal of broker’s complaint affirmed; broker had an oral non-exclusive agreement with the landlord to find tenant for the premises; the mere introduction of the tenant is not sufficient to establish procuring cause; abandonment of the transaction occurred where two years elapsed between sole contact and execution of the lease

175. Hausman Realty Co., Inc. v. Klaver (262 A.D.2d 613) - broker’s complaint dismissed; seller entered into a “binder” contingent upon her attorney’s approval; seller unable to reach an agreement on the terms of the sale with the purchaser and thereafter entered into a contract to sell her house to another; broker’s commission claim on the binder fails as the parties never reached a meeting of the minds as to the terms customarily contained in an agreement for the sale of real property such as contract date, method of payment of the purchase price, whether the property was to be sold “as is” and when the closing was to take place; mere agreement as to price does not constitute a meeting of the minds to entitle broker to a commission; binder never approved by seller’s attorney and merely constituting an unenforceable agreement to agree

176. Cassetta Frank, Inc. v. P.G.C. Assoc. (264 A.D.2d 375) - broker establishes it was the procuring cause where parties agreed to be bound by the “customary and usual rate”, court finds appropriate rate of commission as 3% (sales price $7,475,000.00); corporate broker authorized by statute to proceed with litigation even though it failed to pay its franchise tax and was dissolved by the Secretary of State; seller entitled to indemnification from buyer under contract of sale

177. Harvard Assoc., Ltd. v. Hayt, Hayt & Landau (264 A.D.2d 814) - broker not entitled to a commission where brokerage agreement was not an exclusive right to deal only an exclusive agency; broker was not the procuring cause of the renegotiated lease

178. Sacca v. Symbol Technologies, Inc. (265 A.D.2d 309) - summary judgment dismissing broker’s complaint affirmed; broker was not the procuring cause; broker did not raise triable issues of fact as to defendant’s bad faith

179. Donnelly v. Margolis (265 A.D.2d 523) - summary judgment dismissing owner’s complaint against real estate broker and its agent affirmed; no obligation to act as a legal advisor to the owner regarding relevant provisions of the Town Code and had no duty to investigate the prospective tenants to ascertain their suitability under the Town Code; obligations of broker and its agent were satisfied when they produced ready, willing and able tenants with whom owner executed a rental agreement

180. Besen & Assoc., Inc. v. Besdine Mgt. Co. (266 A.D.2d 105) - summary judgment dismissing broker’s complaint affirmed; broker fails to establish a meeting of the minds as to the terms and conditions upon which the property was sold

181. Morgan Barrington Assoc. of New York, Inc. v. 175 East 74th Corp. (266 A.D.2d 106) - broker entitled to a commission where commission agreement provided that commission was contingent upon tenant’s continued occupancy of premises and, although landlord obtained warrant for tenant’s eviction, tenant obtained stay of the warrant which provided for tenant’s continued occupancy reviving owner’s obligation to pay commission; broker’s statement in its verified complaint that it is a licensed real estate broker is prima facie showing of licensure under RPL §442-d, burden shifted to owner to establish non-licensure

182. Ormond Park Realty, Inc. v. Round Hill Development Corp. (266 A.D.2d 523) - summary judgment dismissing broker’s complaint affirmed; broker fails to set forth any proof that it had an oral or written agreement, express or implied, entitling it to a commission; broker fails to establish it was the procuring cause

183. Stapelton v. Mattera (266 A.D.2d 531) - salesperson’s commission claim against a brokerage firm with whom the salesperson was not associated fails under RPL §442-a as the salesperson shall receive or demand compensation only from the licensed real estate broker with whom he is associated; since salesperson was not associated with brokerage firm, he could not enter into an enforceable agreement with the brokerage firm to share commissions

184. Comvest Consulting, Inc. v. W.R.S.B. Development Co. (266 A.D.2d 890; aff’d 266 A.D.2d 891) - broker prevails in commission claim against buyer where buyer acknowledges that broker procured the seller and contends only that it had no agreement or understanding with broker regarding commissions; commission entitlement based upon being the procuring cause of the transaction

185. Julien J. Studley, Inc. v. Levy Fashion Center Assoc. (268 A.D.2d 218) - motion to dismiss broker’s complaint affirmed where brokerage agreement was between broker and parties other than defendants and provided that broker was appointed as the exclusive sales agent of those other parties

186. Lawrence Co., Inc. v. 180 Realty Co. (268 A.D.2d 238) - order requiring defendants to pay full real estate commission sought by broker affirmed; defendants accepted broker’s services in procuring a tenant and agreed to pay a commission, and as the conditions upon which a reduction of the commission were not met, broker was entitled to the full commission

187. Wings Assoc., Inc. v. Warnaco, Inc. (269 A.D.2d 183; lv. to appeal den., 95 N.Y.2d 759) - where broker’s original agreement was validly terminated prior to the contract that led to the subject sale, any other agreement between the parties for the payment of a brokerage commission would be governed by the Statute of Frauds and the broker’s claims are barred since the broker has not alleged, in connection with the alleged subsequent agreement, the existence of some writing evidencing defendant’s intention to be bound; since alleged subsequent agreement is void by reason of the Statute of Frauds, broker cannot use the same alleged promises as a basis for a cause of action sounding in quantum meruit

188. Eastern Consolidated Prop., Inc. v. Chemical Bank (269 A.D.2d 261) - judgment dismissing broker’s cause of action in quantum meruit affirmed; cause of action properly dismissed where there is no relationship between third party and the entity with which broker had a brokerage agreement; absent such relationship, it is not enough that third party may have benefitted from broker’s services; broker must look to party for whom broker performed services for payment

189. 6 Hunter Drive, Inc. v. Stechler (269 A.D.2d 382; lv. to appeal den., 95 N.Y.2d 755) - broker entitled to commission where broker entered into an exclusive right to sell agreement with seller that provided for a two month protection period where broker would be entitled to a commission if it showed the house to the prospective buyers who signed a contract of sale within the two month period; undisputed that sellers entered into a contract of sale within the protection period and broker establishes that it showed the house during the term of the listing by affidavits from two of its agents which were confirmed by records maintained by the listing broker showing that those two agents had signed out the key to the house on the dates in question

190. Cappuccilli v. Krupp Equity Limited Partnership (269 A.D.2d 822) - broker’s complaint reinstated where questions of fact exist as to whether or not broker was the procuring cause of the transaction; broker was precluded from the negotiations by the parties after broker had advised seller that it was acting as a co-broker for the sale of the seller’s property and provided the seller with a letter of intent from the ultimate purchaser, all of which occurred after seller advised broker that it was interested in selling its property

191. Harper-Lawrence, Inc. v. Intershoe, Inc. (270 A.D.2d 8) - broker establishes exclusive agency agreement to locate leased premises and establishes entitlement to commission by identifying space, introducing principal to the property in question and negotiating with the current landlord on an acceptable buyout of the existing lease on terms later accepted by the principal; broker is entitled to fair and reasonable commission they would have received had principal not breached agency agreement

192. Breslin Realty Development Corp. v. 112 Leaseholds, LLC (270 A.D.2d 299) - triable issues of fact exist where there is a bona fide dispute as to the existence of a brokerage contract; broker may proceed on theories of breach of contract and quantum meruit

193. DiStefano v. Rosetti-Falvey Real Estate, Inc. (270 A.D.2d 631) - broker’s cause of action survives motion to dismiss where broker alleges that principal engaged in dealings directly with tenant’s agent and that his principal waited until the exclusive listing agreement expired before leasing the property to the tenant in order to avoid paying the broker’s commission; bad faith exception

194. Interactive Properties Corp. v. Morris (271 A.D.2d 339) - motion for summary judgment dismissing broker’s complaint affirmed; mere introduction to property does not rise to the level of procuring cause; another broker was the procuring cause where it introduced the tenant to the space in question, took tenant to see the space, submitted the tenant’s offer to the building owner, negotiated the terms of the lease and otherwise brought about a meeting of the minds between tenant and owner

195. Garrick-Aug Assoc. Store Leasing, Inc. v. Wein (271 A.D.2d 344) - broker’s motion for summary judgment denied; exclusive brokerage agreement provided that a commission would be due upon sale and/or lease, assignment and/or recapture by landlord; subsequent surrender of lease by tenant raises question of fact whether or not such surrender is within the meaning of “recapture”; award of attorney’s fees and costs pursuant to contract reversed as premature until broker establishes entitlement to commission

196. J. Grotto & Assoc., Inc. v. Hiro Real Estate Co. (271 A.D.2d 360) - broker fails to demonstrate entitlement to a commission where there is no meeting of the minds; counter-offer by proposed tenant to owner’s proposed lease terms operated to terminate owner’s original offer and rendered any subsequent acceptance of the original offer inoperative; broker may not recover in quantum meruit where owner not unjustly enriched by broker’s services

197. New Spectrum Realty Services, Inc. v. Weiser (273 A.D.2d 172) - summary judgment for broker reversed; contract offered by proposed purchaser contained several terms which deviated from owner’s offer of sale; issues of fact exist as to whether or not owner’s unilateral efforts defeated the sale

198. Friedland Realty, Inc. v. Piazza (273 A.D.2d 351) - broker entitled to recover commission where broker was the procuring cause of a lease; broker established owner’s conscious appropriation of broker’s efforts and the existence of a valid non-exclusive implied agreement between broker and owner; owner’s last minute attempt to eliminate commission was mere device to escape payment

199. Steven Fine Assoc., Inc. v. Serota (273 A.D.2d 375) - judgment awarding broker commission reversed; broker failed to demonstrate that it was entitled to recover commission from defendants under a theory of either expressed or implied contract; defendants never retained broker to act as their broker and, in fact, broker had entered into an exclusive agreement with third defendant

200. Sotheby’s International Realty, Inc. v. Dunemere Assoc. Real Estate (275 A.D.2d 318) - co-broker entitled to commission from listing broker where written co-exclusive brokerage agreement was orally extended as confirmed by their sworn statements and conduct; listing broker obligated to pay reasonable attorney’s fees to owner pursuant to indemnification clause in written listing agreement

201. Atlas Organization, Inc. v. Barington Capital Group, L.P. (276 A.D.2d 385) - summary judgment dismissing broker’s claim for breach of contract properly denied; question of fact exists as to whether broker agreed to condition its receipt of a brokerage commission upon more than its producing a ready, willing and able tenant to sublease subject premises

202. Jacob Gold Realty, Inc. v. Sckoczylas (186 Misc.2d 612) - broker’s complaint dismissed where original written brokerage agreement was modified by second written agreement, the terms of which required a closing of title and delivery of deed for commission entitlement; terms of new contract control over inconsistent provisions in old contract

203. Marketplace Realty v. Robinson (277 A.D.2d 431) - summary judgment for broker affirmed; broker establishes its entitlement to commission as lower court properly concludes that defendants were liable as agents for an undisclosed or unidentified principal

204. Kenneth D. Laub & Co., Inc. v. The Bear Stearns Co., Inc. (278 A.D.2d 121) - broker breached its fiduciary duty and therefore forfeited any right to compensation for its services where broker failed to disclose to its principals that broker had agreements with third parties to receive commissions in connection with the leasing of two properties which broker was proposing that its principals lease

205. Abrams Realty Corp. v. Elo (279 A.D.2d 261) - trial evidence establishes that broker was the procuring cause of sale of property; brokerage agreement was not unenforceable for its failure to specify rate at which broker’s commission would be computed since it was clear that broker did not agree to work without compensation and that the parties understood that the broker would be compensated at the prevailing, normal and accepted rates; trial court properly rejected attempt to evade obligation to pay broker’s commission by endeavoring to characterize the transaction as merely the assignment of a successful bid

206. Andover Retail Services, Inc. v. Lincoln Metrocenter Partners, L.P. (279 A.D.2d 269) - summary judgment dismissing brokers claim affirmed; where brokerage agreement provided that landlord would be relieved of its obligation to pay installment payments on commission upon a termination of the lease by tenant, the broker was not entitled to installment payments after landlord and tenant entered into a surrender and cancellation agreement of the lease, even though surrender and cancellation agreement provided for payment from landlord to tenant

207. Kaplon-Belo Assoc., Inc. v. McKesson Corp. (279 A.D.2d 554) - broker was not entitled to commission where brokerage agreement conditioned commission upon consummation of sale and transfer of title and broker produced a prospective buyer but no contract of sale was ever executed

208. Casella v. Moczulski (280 A.D.2d 508) - broker’s complaint for recovery of commission pursuant to a written brokerage agreement dismissed where brokerage agreement provided that a commission would be earned only if the property or any portion thereof was sold or exchanged during the term of the agreement and it was undisputed that this did not occur

209. Yoo v. Tauber (281 A.D.2d 171) - broker’s complaint for commission dismissed; parties agreed that brokerage commission was conditioned upon closing of title and closing did not occur; broker’s claim that closing did not occur due to seller’s willful default fails where there was no agreement on all matters under negotiation and therefore no contract under which seller could willfully default

210. Brown Harris Stevens Residential Sales, LLC v. Safari Development Company Ltd. (281 A.D.2d 211) - nonjury trial judgment awarding brokerage commission unanimously affirmed; preponderance of the evidence shows that the proposed sale was not contingent upon seller’s ability to consummate a like kind exchange

211. Bell & Assocs., LLP v. Pyramid Brokerage Co., Inc. (281 A.D.2d 943) - agreement between two brokers to “co-broke the lease commission” means “to split” the commission and therefore such commission cannot be split until it is received; the broker’s duty to share a commission pursuant to a co-brokerage agreement does not mature until actual receipt of the commission by the broker

212. Gale Assocs., Inc. v. Hillcrest Estates, Ltd. (283 A.D.2d 386) - broker establishes entitlement to commission based upon listing agreement as extended by written agreement and subject to co-brokerage agreement; seller’s claim that it never agreed to extend the listing because the extension was signed by seller’s representative without reading it first fails; seller does not proffer any valid excuse for not reading the extension agreement; seller is conclusively bound by terms of extension agreement

213. Marino Realty, Inc. v. Testa (283 A.D.2d 392) - judgment dismissing broker’s complaint for commission affirmed; listing agreement provided that commission was due only when, as and if title closes except for seller’s willful default; broker fails to establish that seller was in willful default of the contract of sale for the subject property

214. Williams Real Estate Co., Inc. v. 130 William LLC (284 A.D.2d 261) - broker prevails in obtaining commission award in the absence of a definite agreement or contract with landlord upon the basis of quantum meruit; broker’s recovery was properly reduced in light of representations made by broker as to the air conditioning requirements of the prospective tenants, which representations were in material respects inaccurate and damaging to landlord

215. Eastern Consolidated Properties, Inc. v. Lucas (285 A.D.2d 421) - Supreme Court’s order to dismiss broker’s complaint reversed; broker’s complaint sufficiently alleges that certain defendants have the authority to act on behalf of all defendants in the underlying real estate transaction; upon procuring a buyer ready, willing and able to purchase on the seller’s terms, the broker has earned its commission and a seller who frustrates the consummation of the transaction is liable nonetheless to the broker; no requirement that a brokerage commission be in writing (GOL 5-710[a][10])

216. Finely v. Amyot (285 A.D.2d 946) - non jury trial judgment dismissing broker’s complaint affirmed; mere introduction of the property to the ultimate purchaser is insufficient to make out a case for a commission; where broker’s listing agreement expired but the seller and broker agreed that broker would continue his efforts to show the seller’s property, the broker must be the procuring cause of the sale; broker is not the procuring cause where he merely introduced the ultimate purchaser to the property and severed his relationship with the seller at the initial showing, thereby abandoning efforts to bring about a meeting of the minds between the parties

217. Kreuter v. Tsucalas (287 A.D.2d 50) - negotiation of a lower payoff figure for an existing mortgage does not constitute regulated real estate activities as defined in Real Property Law §440 which includes negotiation or offering or attempting to negotiate a loan secured or to be secured by a mortgage; mortgage broker entitled to commission pursuant to agreement for negotiating a lower mortgage payoff

218. Loeb Partners Realty v. Sears Associates (288 A.D.2d 110) - broker is not the procuring cause of lease; broker merely submitted a minimal lease proposal after the property was shown by tenant’s attorney and leasing agent, had no further participation in the transaction, and the lease agreed to was substantially different from the brief proposal submitted by broker

219. Matter of New York City School Construction Authority (288 A.D.2d 224) - broker’s claim for commission dismissed where broker sought commission upon transfer of property by condemnation and the content of the brokerage agreement did not include condemnation as an event that would trigger the right to a commission; not relevant whether the brokerage agreement was an exclusive right to sell nor whether condemnation may be deemed a sale of the property; DISSENT: broker was entitled to commission as the commission agreement was clearly an exclusive right to sell agreement and the disposition of the real property through condemnation constituted a sale because the seller was able to negotiate (i) what property should be sold, (ii) the time when possession should be given, and (iii) the price

220. Garrick-Aug Associates Store Leasing, Inc. v. Shefa Land Corp. (289 A.D.2d 67) - broker was procuring cause of lease; Supreme Court properly awarded damages in quantum meruit; fact that broker did not participate in working out the terms of the lease does not deprive it of right to compensation; although the terms of the original agreement are a relevant consideration in establishing a quantum meruit award, after the agreement’s termination, it is no longer the sole standard; Supreme Court’s determination supported by unrebutted testimony of the plaintiff’s expert; judgment in favor of broker for $1,221,370.00 affirmed

221. Wharton Realty v. Main 38 Realty, Inc. (289 A.D.2d 177) - plaintiff agreed to provide a tenant for owner in exchange for a portion of the rent collected; such activity constituted regulated real estate activity; plaintiff was not licensed as a real estate broker and accordingly may not maintain action to obtain compensation for acting in that capacity

222. Korin Group v. Emar Building Corp. (291 A.D.2d 270) - it was not necessary for the sale transaction to close for the broker to earn its commission; purchaser’s brokerage account statement was sufficient proof of his financial ability to purchase the property; summary judgment for broker affirmed

223. Matherson & Assoc., Ltd. v. Calderone (190 Misc.2d 775) - to state a direct claim for a commission a broker must establish that it (i) is duly licensed, (ii) had a contract, express or implied, with the party charged with paying the commission, and (iii) was the procuring cause of the sale; cooperating broker acting as a broker’s agent failed to establish that it had a contract, either express or implied, with the seller; seller’s sole agreement was with their listing broker and said agreement was an exclusive right to sell requiring the seller to pay one total commission; cooperating broker’s claim for compensation does not lie against the seller

224. Reiser, Inc. v. Roberts Real Estate (292 A.D. 2d 726) – claims that broker breached listing agreement based on extrinsic evidence cannot survive the explicit language of the listing agreement granting to broker “full discretion to determine the appropriate marking approach” for the listed properties; broker establishes its entitlement to commission under the listing agreements by introducing uncontroverted evidence that three properties sold as a result of broker’s efforts while the listing agreements where in effect; owner’s claims of breach of fiduciary duty fail where owner, builder/developer, did not list all of its properties with broker as broker’s duty is limited to protecting its principal’s interest only with respect to properties which have been listed with the broker; broker’s duty to refrain from taking action adverse to its principal’s interests is necessarily tied to the transaction that formed the agency relationship; owner’s claim of fraud in the inducement under one of two listing agreements survives motion for summary judgment

225. AA Premier Realty, Ltd. v. Cotillion Terrace, Inc. (294 A.D. 2d 383) – broker not entitled to commission where it was undisputed that subject property was not sold or exchanged during the term of the exclusive listing nor sold or exchanged thereafter to anyone with whom the owner or a participating Realtor had negotiations with during the term of the listing agreement, pursuant to the express terms of the exclusive listing

226. Schuckman Realty, Inc. v. Cosentino (294 A.D. 2d 484) – broker fails to establish tortious interference with contract where defendant submitted sufficient proof by affidavit of its director of real estate which averred that it did not intentionally seek the procurement of the breach of contract and where broker failed to present sufficient evidence to raise triable issues of fact

227. Rosen Assoc. Mgt. Corp. v. Bruckner Plaza Assoc. (294 A.D. 2d 556) – broker fails to establish that assignee of receiver was obligated to pay commission where broker failed to establish that receiver was required to pay a commission since broker was not the procuring cause of the transaction; record establishes that broker would not have obtained requisite approvals from the receiver or the foreclosure court; broker failed to establish either an actual breach of contract or the intentional procurement of a breach of the contract to support its cause of action for tortious interference with its contract

228. Dagar Group, Ltd. v. Hannaford Bros. Co. (295 A.D. 2d 554) – issues of fact exist as to whether broker was the procuring cause of lease where broker not only introduced tenant to the property and gave tenant a tour of the property but, at the request of tenant, also provided proprietary lease information; there are also issues of fact as to whether tenant and broker had an implied contract; Supreme Court’s order denying defendant’s motion for summary judgment dismissing broker’s cause of action seeking to recover damages in quantum meruit affirmed

229. Bronson v. Algonquin Lodge Assn., Inc. (295 A.D. 2d 681) – broker entitled to commission where broker establishes that owner agreed to sell its property at the full appraised value and that broker produced a ready, willing and able purchaser at the price set forth in a formal written appraisal of the property; owner, a not-for-profit corporation, fails to establish that the listing agreement violated either its constitution or Not-For-Profit Corporation Law §§509 and 510 which govern the sale of real property, not the execution of the listing agreement

230. Atlantic Hudson Realty, Inc. v. Rhodes (297 A.D. 2d 300) – broker was entitled to his commission since there was no admissible proof introduced at trial to support the bare assertion that the broker shared its commission with the buyers of the seller’s house; seller fails to show that he suffered any damages

231. Timoney v. Newmark & Co. Real Estate, Inc. (299 A.D.2d 201) – summary judgment dismissing complaint for breach of contract granted where agreement between plaintiff and defendant plainly provided that plaintiff is not entitled to 10% of defendant’s commission until defendant actually receives the commission and defendant presented undisputed evidence that it had not received a commission.

232. Town & Country Southampton, Inc. v. Grey (299 A.D.2d 541) – to recover a commission, a broker must establish that he or she is duly licensed, that he or she has a contract, express or implied, with the party charged with paying the commission, and that he or she was the procuring cause of the sale or lease; broker’s unsupported and conclusory allegation of bad faith failed to raise triable issues of fact where defendant’s made prima facieshowing of entitlement to judgment as a matter of law on the ground that neither the broker or its agent was a procuring cause of the lease.

233. Greenthal Commercial Corp v. Equity Residential Properties Trust (300 A.D.2d 47) – compensation due to broker by its buyer client was limited to the reasonable value of the services that broker performed after it had waived its right to compensation from the seller where broker acknowledged that broker and buyer never reached a meeting of the minds as to the amount of its commission and that broker performed most of the work necessary to the transaction during a time when it was expecting compensation only from the non-party seller under a co-brokerage agreement with the seller’s broker.

234. City One Real Estate, LLC v. 535 Carlton Avenue Realty Corp. (300 A.D.2d 337) – broker established its entitlement to judgment as a matter of law on two separate contracts by submitting a copy of the leases between landlord and its tenant wherein landlord promised to pay broker $50,000 for its brokerage services; landlord and tenant failed to come forward with evidence sufficient to raise a triable issue of fact as to their claim that they collectively owed the broker only one $50,000 commission for services in connection with leasing the two premises.

235. Norma Reynolds Realty, Inc. v. Miral (301 A.D.2d 364) – mere agreement as to price on a proposed sale of real property does not constitute a meeting of the minds of vendor and vendee so as to entitle the real estate broker to commissions; there was no meeting of the minds as to other terms customarily contained in an agreement for the sale of real property, such as a contract date, whether the premises were to be sold in “as is” condition and when the closing was to take place.

236. Gumley Haft Kleier, Inc. v. Bildirici (301 A.D.2d 390) – no commission was due under brokerage agreement providing that a commission “shall be payable at closing of title” but that seller would be liable for a commission if the transaction did not close if the failure to close was attributable to seller’s willful default; sale did not occur as a result of the buyer stopping payment on his deposit check and refusing to proceed to closing and therefor failure to close was not the consequence of any willful default by seller.

237. Helmsley-Spear, Inc. v. Kupferschmid (301 A.D.2d 442) – no commission was due where sale of the subject property and broker’s commission were contingent upon the satisfaction of the condition which went unsatisfied through no fault of the seller; broker failed to produce a buyer ready, willing and able to purchase the property on terms acceptable to the seller where the “marked-up” contract returned to seller by the buyer’s lawyer constituted a counteroffer which seller did not, and was not in good faith obligated to, accept.

238. Robison v. Sweeney (301 A.D.2d 815) – broker’s right to a commission is not dependent upon the execution of a legally enforceable contract, so long as the seller and buyer have come to a meeting of the minds on the essential terms of the transaction; summary judgment for broker reversed where there are questions of fact as to whether there was a meeting of the minds between the buyer and the seller regarding the essential terms of the contract.

239. Signature Realty, Inc. v. Tallman (303 A.D.2d 925) – if there is any doubt or uncertainty as to the meaning of the disputed language in a brokerage agreement, all ambiguity must be resolved against the broker who prepared it; brokerage agreement was, as a matter of law, ambiguous with respect to the issue of whether broker would earn commissions when tenant exercised an option to renew the lease and therefore broker is not entitled to commissions on rental payments during any renewal term of the lease; broker not entitled to restitution in quasi-contract because there exists a valid and enforceable written contract governing the particular subject matter in dispute; dissenting opinion finds that the brokerage agreement is clear with respect to commissions earned and payable and that tenant was obligated to pay a commission to broker at the time the rental payment was due and owing to landlord, including during renewal terms of the lease.

240. Segal v. Hawn (304 A.D.2d 331) – broker failed to show that she was the procuring cause of the sale of the apartments so as to earn a real estate brokerage commission; ambiguities in the brokerage agreement drawn by broker must be construed against broker; a reasonable duration is implied by the court where the brokerage agreement contained no specific duration; no basis to imply a term of duration any longer than one year fixed by the court.

241. Dawn’s Gold Realty v. Dagnese (304 A.D.2d 519) – broker’s complaint dismissed where brokerage agreement provided that a commission shall be due and payable when, as and if title passes and seller demonstrates that the purchaser procured by the broker failed to consummate the sale and that title never passed; broker failed to raise triable issue of fact that the failure of title to pass was due to the seller’s fault or default.

242. Breslin Realty Development Corp. v. Luk-Shop, LLC (304 A.D.2d 698) – questions of fact exist as to whether defendants affirmatively assumed the obligation to pay the broker’s commission; defendant’s motion for summary judgment dismissing the complaint denied.

243. Panarello v. Segalla (304 A.D.2d 734) – to earn a commission, a broker must prove that he or she had a contract, either express or implied, with the party to be charged with paying the commission and that he or she was the procuring cause of the sale; triable issue of fact exists as to whether broker had a contract with defendant.

244. Queens Structure Corp. v. Jay Lawrence Asso., Inc. (304 A.D.2d 736) – brokers representing the seller for a commission of $367,000 with respect to the sale of seller’s property also entered into an agreement with the prospective purchaser whereby the purchaser agreed to pay the brokers a “consulting fee” of $257,000; brokers working for seller had an affirmative duty not to act for the purchaser or its assignee unless the seller had full knowledge of the facts; brokers failed to establish their entitlement to judgment as a matter of law to the $257,000 consulting fee to be paid by purchaser; brokers’ motion for summary judgment denied.

245. Hampton Country Real Estate, Inc. v. Rizzo (305 (A.D.2d 458) – to recover a commission, the real estate broker must establish, inter alia, that it procured a purchaser ready, willing and able to buy the subject property on the terms set by the seller; broker’s complaint dismissed where seller made a prima facie showing of entitlement to judgment as a matter of law on the ground that there was no meeting of the minds between the seller and the prospective purchaser procured by the broker with respect to all of the essential terms of the sale

246. Kling Real Estate, Ltd. v. DePalma (306 A.D. 2d 445) - summary judgment motion dismissing broker’s complaint affirmed; broker’s suit for commission based upon two binder agreements fails where unilateral modification of the proposed contracts of sale by the prospective purchasers constituted a counter offer which the seller rejected; no cause of action exists for commission against buyer in second transaction where sellers agreed to pay the brokerage commission

247. Bethmann v. The Widewaters Group, Inc. ( 306 A.D. 2d 923) - judgment in favor of real estate salesman in action against his former broker upon breach of oral agreement to recover unpaid leasing commissions and wages is affirmed; broker’s request for a new trial based upon prejudice accruing as a result of Supreme Court’s evidentiary ruling allowing evidence of the non-licensure of two of broker’s leasing agents who received the commissions claimed by plaintiff did not prejudice broker

248. Norma Reynolds Realty, Inc. v. Bird (307 A.D. 2d 283) - broker failed to establish entitlement to commission under an exclusive brokerage agreement which provided that broker would not be entitled to a brokerage commission until title to the premises closed where broker procured a potential buyer who agreed to pay the asking price but submitted a counter offer requesting changes to seller’s proposed contract of sale and which seller refused to execute; broker failed to establish that seller breached its implied covenant of good faith and fair dealing in regard to the subject agreement where seller established that counter offer contained several material changes to the proposed contract of sale and the counter offer was legitimately rejected

249. Salvador v. Uncle Sam’s Auctions & Realty, Inc. (307 A.D. 2d 609) - question of fact exists precluding summary judgment where brokerage agreement for the auction of four parcels provided that broker would earn a commission if a purchaser is found and then the property is withdrawn without the broker’s consent where a purchaser was found for three of the four parcels and one parcel was withdrawn

250. Joseph P. Day Realty Corp. v. Chera (308 A.D. 2d 148) - broker’s complaint for commissions reinstated where questions of fact exist as to whether broker was the procuring cause of a commercial tenant and if there was an implied contract which arose from landlord’s acceptance of the benefits of broker’s services; broker must plead and prove a contract of employment, express or implied, and in the absence of an express contract, an implied contract may be established in some cases by the mere acceptance of the labors of the broker; broker failed to establish that it was a third party beneficiary of lease agreement between landlord and tenant where provisions in lease merely provided for indemnification between the parties and did not expressly set forth that one party would be obligated to pay the broker’s commission; indemnification provisions in the lease agreement do provide evidence of implied contract of employment with landlord where landlord agreed to indemnify tenant against brokerage commission claims from all brokers including plaintiff and where, to the contrary, tenant’s reciprocal indemnification excluded plaintiff; triable issues of fact exist as to whether broker was the procuring cause where broker introduced the parties, showed the space to tenant’s representatives, was involved in weekly negotiations with the parties over the lease terms, conveyed offers on behalf of tenant to landlord and participated in the meeting with the landlord and tenant at which the lease terms were finalized

251. Re/Max Homes and Estates, Inc. v. Leist (308 A.D. 2d 439) - cooperating broker’s complaint dismissed against seller; cooperating broker had no cause of action against seller because it had no contract, express or implied, with seller; cooperating broker’s sole contract was with the listing broker; complaint was properly dismissed insofar as asserted against the listing broker because complaint did not demand any relief from the listing broker.

252. AA Frontier, Inc. v. Silverman (1 Misc. 3d 1) - in the absence of an agreement to the contrary, broker’s commission is earned upon procuring a purchaser who is ready, willing and able to perform the contract on terms satisfactory to the seller; an “able” purchaser is one who has the financial ability to perform; burden lies with broker to establish that its prospective purchaser was financially able to meet the purchase price; broker’s complaint dismissed

253. Helmsley-Spear, Inc. v. Kasi (2 A.D. 3d 149) - broker’s only overture respecting the subject property was by means of a “set-up” allegedly faxed to purchaser; record affords no non-speculative basis to conclude that “set-up” was in any way instrumental in bringing about the property’s eventual sale; broker’s complaint dismissed

254. North40RE Realty, LLC v. Bishop (2 A.D. 3d 1184) - City Court’s dismissal of broker’s complaint reversed on appeal to County Court affirmed by Appellate Division; reversal is appropriate where there has been a deviation from substantive law which renders the determination clearly erroneous; broker entitled to commission under clear and unambiguous terms of exclusive buyer broker agreement; buyer refused to allow broker any involvement in the purchase negotiations because seller refused to deal with brokers

255. Julien J. Studley, Inc. v. Coach, Inc. (3 A.D. 3d 358) - broker’s cause of action alleging commission is owed due to bad faith termination of brokerage agreement is reinstated; broker adequately alleged that landlords of the property in question circumvented the brokerage agreement by contacting the company directly and negotiating lease; broker’s causes of action seeking to hold tenant liability for breach of brokerage agreement’s exclusivity provision reinstated; record supports the allegation that tenant breached the exclusivity provision of the brokerage agreement prior to its termination

256. Hirschfeld Properties, Inc. v. Juliano (3 A.D. 3d 399) - broker relies upon writing which does not contemplate payment of brokerage commission and thus is not a valid real estate brokerage agreement; absent such an agreement, broker must demonstrate that it was the procuring cause of the lease, which broker admits that it was not; broker’s complaint dismissed

257. Garrick-Aug Assocs. Store Leasing, Inc. v. Hirschfeld Realty Club Corp. (3 A.D. 3d 406) - transaction broker brought about was abandoned; transaction subsequently concluded by landlord with tenant was fundamentally different; broker did not play a significant role in the subsequent transaction and was not the procuring cause thereof; broker’s complaint dismissed

258. Panarello v. Segalla ( 6 A.D. 3d 515) - where the dominant feature of a transaction at issue is the transfer of real property, one who does not have a real estate broker’s license is barred from collecting a fee for endeavors in the nature of brokerage services; record establishes that sale of country club was the transfer of valuable real estate and not the sale of country club business; judgment for non-licensee for brokerage services reversed

259. Beck v. Heider (4 Misc. 3d 128A) - judgment for broker affirmed where the evidence shows that shortly after broker showed a residential apartment to tenant, tenant rented the property through another broker in breach of the parties’ written brokerage agreement

260. Signature Realty, Inc. v. Tallman (2 N.Y. 3d 810) - option to renew a lease falls within the broad category of “a lease, rental agreement or other occupancy” in the parties’ agreement unambiguously requiring payment of 10 percent of the rent over the period of occupancy; order of Appellate Division reversed, not in the Court’s power to grant broker summary relief as broker did not cross-move for summary judgment

261. Schwartz v. The Halstead Property Co. ( 4 Misc. 3d 136A) - broker’s claim for real estate brokerage commission in connection with the sale of certain condominium apartments was barred by general release executed by broker; release is enforceable in the absence of duress, illegality or mutual mistake; broker knew of the potential claim he now seeks compensation for at the time of execution of the release; dismissal of broker’s complaint affirmed

262. Greendlinger v. Marilyn A. Donahue Real Estate, Inc. (4 Misc. 3d 1016A) - salesperson’s motion for summary judgment for commission against her broker granted; broker and salesperson orally agreed that broker would pay half of any commission that broker received to salesperson where salesperson was the procuring cause of sale generating the commission; broker refused to pay salesperson’s commission on grounds that commission was not paid to broker on legal grounds but upon long standing ties with other brokerage firm and that salesperson did not do her job competently and professionally; court determined that in the course of performance it is the fact of payment of commission to the broker that triggers payment to the salesperson; judgment for salesperson for $11,250.00

263. Renee Despins Realty, Inc. v. Roberts ( 1 A.D. 3d 211) - broker’s exclusive brokerage agreement with owner provided for commission for the sale of a condominium upon closing of title or a willful failure to close; brokerage agreement excepted named buyer from exclusive agreement; named buyer purchased the property during the term of the exclusive; dismissal of broker’s complaint unanimously affirmed where brokerage agreement expressly excepted the purchasers from its operation

264. Phufas v. Cornerstone New York Muni Fund, Inc. (9 A.D. 3d 323) - broker’s causes of action for commission dismissed where the unambiguous language of the brokerage agreement provided for a commission only in the event of sale; taking of the premises by condemnation was not an event that triggered the right to a commission; broker’s cause of action to recover in quantum meruit for services performed at seller’s request to obtain clear and marketable title, resulting in a settlement and order to quiet title, reinstated as such services are arguably separate from and not the type generally contemplated by the brokerage agreement

265. Rokosz v. Belmont Watkins Realty Corp. (5 Misc. 3d 1003A) - broker’s complaint for commission dismissed; broker forfeits his right to compensation by failing to promptly disclose to principle all material information he possesses and obtains concerning the transaction in which he is engaged

266. Srour v. Dwelling Quest Corp.(11 A.D. 3d 36) - in accordance with express terms of written brokerage agreement, broker earned his commission upon locating a suitable apartment for plaintiff to lease; broker’s right to commission was unaffected by landlord’s subsequent default in its obligation to tenant to maintain the premises in a habitable condition and in the condition in which it appeared at the time of the lease; there was no precondition in the brokerage agreement requiring that tenant be in occupancy in the residence before the broker’s obligation is discharged and the commission earned

267. Hornick v. Hecht Group Corp.(4 Misc. 3d 143 A) - small claims court’s dismissal of actions against broker affirmed where the evidence fairly supports a finding that the broker satisfactorily performed its contractual obligations and had no part in any fraud or misrepresentation in obtaining plaintiff’s agreement to lease the apartment; claims that broker engaged in dishonest or misleading advertising or demonstrated untrustworthiness or incompetency in violation of RPL§ 441(c) are matters solely within in the jurisdiction of the Secretary of State

268. Insignia Douglas Elliman LLC Retail Group v. Merrell(11 A.D. 3d 252) - broker’s complaint for commission dismissed; landlord/owner withdrew his offer of sublease to subtenant procured by broker and sublet the premises to another, refusing to pay broker its brokerage commission; broker must establish through admissible evidence that the prospective tenant was ready, willing and financially able to complete the transaction; broker failed to furnish any financial documentation in admissible form that tenant had the financial resources to qualify as a subtenant

269. Manhattan Apartments, Inc. v. Simeon (11 A.D. 3d 404) - broker entitled to commission pursuant to an oral brokerage agreement for the sale of defendant’s apartment where broker introduced prospective buyer to the property, arranged for two on-site inspections and was involved in sale negotiations even though apartment was eventually sold to prospective buyer’s mother at the same price where record showed that purchaser (mother) was prospective buyer’s alter ego

270. Lemack Corp. v. Holmberg (11 A.D. 3d 589) - broker’s cause of action for commission dismissed; broker had no commission agreement with sellers and was entitled to a commission only if it was the procuring cause of the sale pursuant to LIBOR MLS rules; broker was not the procuring cause of the sale; sellers were free to accept the contemporaneous offer of the buyers to whom they actually sold their house and paid the commissions owed to the broker involved in that sale

271. Dagar Group, Ltd. v South Hills Mall, LLC (12 A.D. 3d 552) - triable issues of fact exist where brokerage agreement required lease to be signed and delivered by date certain and where no lease was signed and delivered by required date; broker raised triable issues of fact with respect to whether principles were responsible for the failure of that condition by delaying execution of the lease; possession by one party of a right to cancel the lease after it has been executed does not defeat the broker’s claim to its commission

272. Mavco Realty Corp. v M. Slayton Real Estate, Inc. (12 A.D. 3d 575) - triable issues of fact exist as to whether or not corporate broker was licensed at the time the services which formed the consideration for the claimed commission were rendered; a broker who is unlicensed when services were rendered cannot recover commissions; triable issues of fact exist as to whether two individual defendants were licensed brokers at the time services were rendered

273. L.B. Kaye International Realty Commercial Svcs., Inc. v. 100 Varick Realty (15 A.D.3d 176) judgment awarding plaintiff real estate broker damages in the principal amount of $133,761.00 affirmed; appellate court does not disturb trial court’s finding that defendant intentionally excluded broker from exercising the exclusive leasing rights it obtained under the brokerage agreement thereby entitling broker to full commission when defendant leased the premises covered by the agreement on its own.

274. Steven G. Walther, Inc. v. Taranto (16 A.D. 3d 1076) buyers procured by broker remained ready willing and able to complete the purchase pursuant to the terms of the purchase contract thereby entitling broker to its commission where purchase and sale contract addendum made the offer contingent upon the sale of buyer’s existing residence; pursuant to the addendum, seller received another purchase offer, he was entitled, upon notice to the buyers, to accept the offer and cancel the contract with the buyers unless they removed the sale and transfer of title contingency within three days after receiving such notice; buyers could remove the contingency by demonstrating in writing that they had accepted a mortgage loan commitment which does not require the sale and transfer of title of their property as a condition of the mortgage loan funding; buyer complied with such requirement, even though mortgage loan commitment was subject to additional conditions not prohibited by the contract; judgment for broker.

275. The Greenwich Group International, LLC v. Southhampton Catcove, LLC (17 A.D. 3d 272) judgment for broker affirmed; broker performed its obligations under its agreement by continuing to seek financing commitments from other lenders even after learning that a particular lender, which eventually committed to defendant through another broker, would not do so on terms sought by defendant.

276. Fried v. David Berry Realty (17 A.D. 3d 405) brokerage agreement entitled broker to a commission when there is a meeting of the minds and a tenant was procured who was ready willing and able to lease upon the owner’s terms; lease procured directly by owner conditioned lease upon obtaining operating certificates from the New York State Department of Health and the New York State Office of Mental Health; there was nothing in the record to indicate that approval by NYSOMH, which was denied, was a “term” imposed by owners and therefore triable issues of fact exist as to whether the broker’s commission was earned.

277. R.R. Ragette, Inc. v. D’Incecco (17 A.D. 3d 436) broker established its entitlement to judgment as a matter of law by demonstrating that it earned its commission by procuring a buyer who was ready, willing and able to purchase seller’s property in accordance will the seller’s terms; seller failed to raise a triable issue of fact; judgment for broker affirmed.

278. Brandenberg v. Waters Place Assoc., L.P. (17 A.D. 3d 615) judgment dismissing broker’s complaint affirmed; broker fails to raise triable issue of fact in opposition to the prima facie showing that broker was not the procuring cause of the lease where potential tenant procured by broker was found to be unsuitable by landlord but five years thereafter potential tenant subleased the property of the tenant procured by landlord; moreover, broker’s action is time-barred as landlord rejected potential tenant more than six years earlier.

279. Battery Park Realty, Inc. v. RKO Delaware, Inc. (18 A.D. 3d 680) order dismissing broker’s complaint affirmed; broker’s right to a commission may be varied by agreement; here, the brokerage agreement provided that broker was entitled to a commission if the seller sold the property to a specified purchaser or if a third party developed the property with anyone introduced by the broker; as none of these events transpired, broker is not entitled to a commission.

280. Hammer v. Griffin (19 A.D. 3d 450) broker’s motion for summary judgment denied; triable issue of fact exists as to whether broker had a contract with the defendant for the payment of a commission.

281. Fischer v. RWSP Realty, LLC (19 A.D. 3d 540) cooperating broker’s complaint against seller to recover his share of a commission allegedly due as the result of a sale of seller’s residence dismissed where cooperating broker fails to establish that it had a contract, either express or implied, with the sellers; sellers sole brokerage contract was an exclusive right to sell listing agreement with the listing broker and thus, the cooperating broker’s claim for compensation does not lie against the seller; cooperating broker fails to demonstrate that he is a third party beneficiary of the listing agreement between the listing broker and seller.

282. Stanzoni Realty Corp. v. Landmark Properties of Suffolk, Ltd. (19 A.D. 3d 582) judgment for broker affirmed; broker established an oral brokerage agreement and its entitlement to summary judgment with respect to closings on real property that had already occurred.

283. Worldnet Real Estate, Inc. v. Suchow (19 A.D. 3d 982) broker’s motion for summary judgment denied; issues of fact exist as to whether broker complied with his obligation under the listing agreement where the broker showed the property to a prospective buyer who thereafter informed the seller that they would not work with the broker and the seller thereafter terminated the listing agreement “for cause”.

284. McNeill v. Menter (19 A.D. 3d 1161) triable issue of fact exists as to whether broker was a procuring cause of the sale.

285. Philip Mehler Realty, Inc. v. Insignia Financial Group, Inc. (21 A.D.3d 255) - judgment dismissing broker’s complaint affirmed; brokerage agreement specifically provided that broker would earn a commission in the event that tenant leased additional space in the premises within 18 months of the lease acceptance date but only if tenant was not represented in the negotiation of such expansion by an unrelated third party broker; additional space acquired by tenant was negotiated by an unrelated third-party broker and thus plaintiff was not entitled to a commission.

286. Peltonen v. Halstead Property Corp. (10 Misc.3d 130A) – small claims judgment in favor of broker dismissing seller’s action against broker affirmed; evidence supports a finding that broker satisfactorily performed its contractual obligations and that seller suffered no damages as a result of broker’s “defective” services; seller’s condominium apartment was sold within one month of the parties’ listing agreement and at a purchase price exceeding the asking price in a co-brokered transaction.

287. Manhattan Apartments, Inc. v. Matera (10 Misc.3d 133A) – small claims judgment in favor of broker affirmed; broker’s responsibility was fully performed upon tenant’s signing of lease agreement, at with point the earned commission became irrevocable; the fact that landlord ultimately agreed to relieve tenant of his leasehold obligations due to noise concerns had no bearing on broker’s entitlement to recover the agreed upon brokerage fee; record contains no indications that broker/tenant agreement incorporated any condition that tenant was looking for a “quiet” apartment.

288. Srour v. Dwelling Quest Corp.(5 N.Y. 3d 874)- order of the appellate division reversed (11 A.D. 3d 36); broker did not satisfy the brokerage agreement’s conditions that broker assist tenant in renting a “suitable apartment” and providing that the broker’s commission was to be paid “at the time of lease signing;” apartment became uninhabitable by the time the landlord signed the lease

289. Country Harbor Realty, Inc v. Sullivan (23 A.D. 3d 606) - summary judgment for broker affirmed; although broker was not involved in any of the negotiations that led to the sale, broker created an amicable atmosphere in which negotiations proceeded and generated a chain of circumstances which lead to the contract of sale; seller failed to raise triable issue of fact

290. A.J. Clarke Real Estate Corp. v. Meyers (27 A.D. 3d 230)- summary judgment for broker affirmed; oral agreement between broker and seller in accordance with general principle that a broker’s commission is deemed earned when a ready, willing and able buyer is produced who assents to the seller’s terms of sale; seller’s actions in retaining down payment for seven weeks and contract documents signed by the prospective buyer while promising to produce a fully executed contract support the conclusion that parties had an agreement entitling broker to a commission

291. Soviero v. Carroll Group International, Inc. (27 A.D. 3d 276)- salesperson asserted causes of action for breach of an oral employment agreement, for wages, statutory liquidated damages and statutory attorney’s fees under the Labor Law, for conversion and conspiracy to commit conversion by the broker and punitive damages for intentional tort; order dismissing all causes of action except the breach of contract claim affirmed; salesperson was fired by the firm and was no longer an “employee” or a “commissioned salesman” of the brokerage firm after her termination, such as would entitle her to wages or a commission; conversion cause of action fails as salesperson must have exercised ownership, possession or control of the property in the first place which she never had such ownership; no viable claim for punitive damages which are not recoverable for ordinary breach of contract

292. Orenstein v. Brum (27 A.D. 3d 352)- summary judgment dismissing broker’s complaint affirmed; no evidence that broker generated the chain of circumstances that led to sale of building; the brokerage agreement contemplated conversion of the building to condominiums and the sale of individual apartments, not a sale of the building itself as occurred; broker is not entitled to commissions for unsuccessful efforts

293. Heelan Realty and Development Corp. v. Ocskasy (27 A.D. 3d 620)- broker’s claim dismissed; although testimony supported conclusion that the contractional relationship of the parties continued beyond the expiration date of the written listing agreement, the broker failed to present legally sufficient evidence of its entitlement to payment of a brokerage commission; prospective buyer’s principal testified that buyer was not advised regarding the environmental contamination and subsequent remediation of the property, that regulatory approvals of the clean up work had not been obtained and was unable to state that the prospective buyer would have consummated the purchase had it been aware of the contamination issues; broker failed to establish that buyer was ready, willing and able to purchase the property and that there was a meeting of the minds between the buyer and the seller

294. Norma Reyonlds Realty, Inc. v. Edelman (29 A.D. 3d 969)- order dismissing broker’s complaint affirmed; language of brokerage agreement was unambiguous and provided that the broker’s commission was to be paid only as, if and when title closes; brokerage agreement further provided that in the event that title fails to close for any reason whatsoever and the seller retains the down payment as liquidated damages, the broker would not be entitled to any compensation in connection with the down payment; it was undisputed that title did not close; broker’s contention that it was entitled to a commission properly rejected

295. Salvador v. Uncle Sam Auctions & Realty, Inc. (30 A.D. 3d 861) - judgments awarding brokerage commission and counsel’s fees affirmed; Supreme Court resolved key factual disputes in favor of broker based upon credible testimony; an award of counsel’s fees was authorized by the contract; commission awarded in the amount of $87,500.00 and attorney’s fees award in the amount of $44,500.00; Appellate Division declined to reduce the amount of counsel’s fees awarded as excess legal work resulted in large part from unavailing and often unnecessary paths pursued and tactics employed by plaintiff; request for appellate counsel fees should be directed to court of original instance

296. Manshion Joho Center Co., Ltd. v. Manshion Joho Center, Inc. (24 A.D. 3d 189)- RPL§442-d, which prohibits recovery of a real estate broker’s commission by brokers who are not licensed in New York, is inapplicable where payment was not compensation for real estate brokerage services but was instead part of the purchase price; RPL § 442-d does not apply to real estate brokerage services rendered outside of New York; all services were performed in Japan by Japanese corporation and thus it is inconsequential that the property marketed was in New York

297. Coldwell Banker Village Green Realty v. Pillsworth (32 A.D. 3rd 568 [3rd Dept.])- Order of the Supreme Court granting broker’s motion for summary judgment affirmed; in the absence of an agreement to the contrary, the broker’s right to a commission is not contingent upon performance of the underlying real estate contract, receipt by the seller of the sale price, transfer of title, or even a formal execution of a legally enforceable sales contract; seller could not utilize the provisions of a subsequently executed sales contract wherein seller agreed to pay broker’s commission “if and when title closes” as a bootstrap to avoid her obligation to the broker under the clear and unambiguous provisions of the listing agreement as such language was contained in the contract of sale prepared by counsel and to which broker was not a party; provisions in listing agreement that seller would accept a binder or purchase contract contingent upon purchaser’s ability to obtain conventional financing and provided any other contingencies in the binder or purchase agreement are acceptable to the seller speak only to the type of purchase offer that seller was obligated to accept and does not alter or otherwise qualify broker’s right to a commission

Featured Content

Third quarter Legal Lines now available

The third quarter 2018 edition of NYSAR’s Legal Lines is now available online at NYSAR.com. This edition covers what a broker's agent actually is, the legal issues related to social media use, conditional approval for financing is not a mortgage commitment and more. Learn more

legal-NYSAR-180x150-2016
Legal