Srour v. Dwelling Quest Corp.

842 N.E.2d 13, 5 N.Y.3d 874, 808 N.Y.S.2d 128, 2005 NY Slip Op 8852, 2005 N.Y. LEXIS 3307

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of the Appellate Term reinstated. The certified question should not be answered upon the ground that it is unnecessary.

Although the common-law rule is that “a broker who produces a person ready and willing to enter into a contract upon his employer’s terms . . . has earned his commissions,” the “parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement” (Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828, 830 [1987] [internal quotation marks and citation omitted]). Here, the rental agreement obligated defendant-broker to assist plaintiff in renting a “suitable apartment” and provided that the broker’s commission was to be paid “at the time of lease signing”; however, the apartment had become uninhabitable by the time the landlord signed the lease. Accordingly, defendant-broker did not satisfy the brokerage agreement’s condition, and is not entitled to any commission.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

Order reversed, etc.