Kaplon-Belo Associates, Inc. v. Tae Hee Kim

145 A.D.2d 413

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1988
• Status: Published

Opinion

— In an action to recover a real estate brokerage commission, the defendant appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated February 22, 1988, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $108,500.

Ordered that the judgment is affirmed, with costs.

“Where ’a promisor himself is the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of the failure’ (Aimes v Wesnofski, 255 NY 156, 162)” (Rappoport v Sabbeth, 134 AD2d 419, 420). Thus, even assuming, arguendo, that under the terms of the brokerage agreement, the transfer of title was a condition precedent to the defendant’s liability for the plaintiff’s commission, the plaintiff was properly granted judgment in its favor, as the evidence adduced established that the defendant’s refusal to comply with the terms of the contract of sale caused the failure of the transfer of title to the property at issue. Mollen, P. J., Thompson, Brown and Eiber, JJ., concur.