Wilkins Agency, Inc. v. Palanzo

55 A.D.2d 780, 389 N.Y.S.2d 488, 1976 N.Y. App. Div. LEXIS 15571

Opinion

—Appeal from an. order of the Supreme Court at Special Term, entered February 10, 1976 in Essex County, which denied defendant’s motion for summary judgment dismissing the complaint. The record contains evidence that the defendant did agree to pay the plaintiff a brokerage fee if the plaintiff produced a buyer, ready, willing and able on the seller’s terms for defendant’s real estate. The plaintiff’s affidavits and examination before trial contain evidence tending to establish that it did produce such a buyer who agreed to terms expressed orally by the defendant, but the defendant then refused to sell. The defendant submitted her examination before trial wherein she denies any completed oral offer and acceptance. Upon the present record it cannot be said that the defendant has conclusively established there was no meeting of the minds or that the plaintiff has failed to establish sufficient merit to require a trial. The denial of the motion was within the discretion of Special Term. The allegation by defendant that the Special Term improperly received an affidavit on behalf of plaintiff is without any merit. Order affirmed, with costs. Koreman, P. J., Mahoney, Main, Larkin and Herlihy, JJ., concur.