Eastern Consolidated Properties, Inc. v. Adelaide Realty Corp.

261 A.D.2d 225, 691 N.Y.S.2d 45, 1999 N.Y. App. Div. LEXIS 5545

Opinions

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 2,1998, which, inter alia, denied defendants’ motion to dismiss the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

Defendant, in seeking to sell 25 West 45th Street, New York County, entered into an oral agreement with plaintiff real estate broker which provided for the payment of a commission upon procuring a purchaser ready, willing and able to purchase upon the terms and conditions set by defendants. After procuring such a purchaser, plaintiff prepared, and both sides executed, a letter agreement providing that the commission “shall be due and payable in full by certified or bank check at closing of title if and only if title actually passes to the purchaser, unless failure to close title is due to [defendants’] willful default.” Thereafter, defendants never entered into a contract of sale with the prospective purchaser. Under the holding of Graff v Billet (64 NY2d 899), it is apparent that no commission is owing in these circumstances. Accordingly, defendants’ motion should have been granted and the action dismissed. Concur— Nardelli, J. P., Williams, Tom and Friedman, JJ.