2001 Real Estate: Space Catalyst, Inc. v. DiBenedetto

207 A.D.2d 442, 615 N.Y.S.2d 751, 1994 N.Y. App. Div. LEXIS 8306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 15, 1994
• Status: Published

Opinion

—In an action to recover a real estate brokerage commission, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Friedmann, J.), entered January 22, 1993, as denied its motion for partial summary judgment on the issue of liability and granted the defendants’ cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A plaintiff seeking to recover real estate brokerage fees in an unclosed transaction must establish that he or she has procured a prospect who has reached agreement with the lessor on essential terms and is ready, willing and able to perform (see, Wykagyl Agency v Rothschild, 100 AD2d 934; see also, Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828; Rusciano Realty Servs. v Griffler, 62 NY2d 696; Lane—Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 42; Sauerhoff-Kessler Realty Corp. v Roma Shopping Plaza, 201 AD2d 477; Blaufeux v Paznik, 162 AD2d 573; Holzer v Robbins, 141 AD2d 505). This, the plaintiff failed to do. The record indicates that while the parties to the proposed transaction had, in fact, signed a letter concerning some material terms to the lease, they did not consider these terms to be complete, final, or binding. Since the proposed tenant never reached an agreement with the defendants concerning the essential terms of the transaction, the plaintiff did not earn its commission. Rosenblatt, J. P., Copertino, Joy and Krausman, JJ., concur.