Cook/Pony Farm Real Estate, Inc. v. Spartan Enterprises, Inc.

157 A.D.2d 766, 550 N.Y.S.2d 372, 1990 N.Y. App. Div. LEXIS 668

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1990
• Status: Published

Opinion

In an action to recover a real estate broker’s commission, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Copertino, J.), entered April 4, 1989, as denied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the complaint is granted.

It is undisputed that the parties agreed that a commission was payable only upon closing or the passing of title to the plaintiff’s proposed buyer, which event did not take place in this case. Accordingly, as a matter of law, no commission was earned and summary judgment should have been granted in favor of the defendant (see, Corcoran Group v Morris, 107 AD2d 622, affd 64 NY2d 1034; Graff v Billet, 101 AD2d 355, affd 64 NY2d 899; White & Sons v La Touraine-Bickford’s Foods, 50 AD2d 547, affd 40 NY2d 1039). Bracken, J. P., Lawrence, Harwood and Balletta, JJ., concur.