American Corporate Real Estate, Inc. v. Lifetime Hoan Corp.

233 A.D.2d 413, 650 N.Y.S.2d 271, 1996 N.Y. App. Div. LEXIS 11973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1996
• Status: Published

Opinion

In an action to recover a brokerage commission, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feuerstein, J.), dated September 27, 1995, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The evidence submitted by both the plaintiff and defendant established that the building ultimately purchased by the defendant was not available for purchase when the plaintiff allegedly brought the building to the defendant’s attention. Nor was it available during the time the plaintiff claims to have performed under an alleged oral exclusive broker’s agreement with the defendant. Therefore, the plaintiff’s claim that it is entitled to a commission because the defendant ultimately purchased the building in issue must fail (cf., Provost v St. Francis Commandery Hall Assn., 118 AD2d 922).

Further, the plaintiff’s allegation that it had an oral exclusive broker’s agreement is insufficient, under the facts of this case, to warrant denial of the defendant’s summary judgment motion (see, e.g., Lanstar Intl. Realty v New York News, 206 AD2d 411).

The plaintiff’s remaining contentions are without merit. Rosenblatt, J. P., O’Brien, Thompson and McGinity, JJ., concur.