Rieker-Madden, Inc. v. Horowitz

78 A.D.2d 959, 433 N.Y.S.2d 287, 1979 N.Y. App. Div. LEXIS 14845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1979
• Status: Published

Opinion

Cross appeals from an order of the Supreme Court at Special Term, entered May 12, 1980 in Ulster County, which denied plaintiffs’ motion and defendants’ cross motion for summary judgment in an action to recover a real estate broker’s commission. The defendants entered into an exclusive agreement with the plaintiff, Rieker-Madden, Inc., where it acquired the exclusive right to sell real property for them and undertook to list the property with the Multiple Listing Service of Ulster County, Inc. That contract contains two specific clauses referring to a sale of the premises which also refer to a commission rate. Thereafter, the plaintiff, Denton-Sanglyn, Inc., submitted a purchase offer by the third-party defendants to the defendants who accepted such offer. The purchase offer specifically refers to an “MLS” listing and was contingent, inter alia, upon a further contract of sale being executed. A further contract of sale was executed by defendants and third-party defendants but, apparently because of objections by the third-party defendants to the purity of the drinking water at the premises, the sale was not perfected although the defendants timely tendered title. Special Term found that there were issues of fact and law as to when the commission would be earned by plaintiffs. Further, Special Term found that there were issues of fact as to whether or not all conditions of the final contract of sale had been met so as to obligate the third-party defendants to purchase the property. Upon the present record it does not appear that either party has a conclusive right to summary judgment. Order affirmed, without costs. Sweeney, J. P., Main, Mikoll, Casey and Herlihy, JJ., concur.