95 A.D.2d 668 | N.Y. App. Div. | 1983
— Order entered June 3, 1982 in Supreme Court, New York County (Greenfield, J.) denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, modified, on the law, to the extent of denying summary judgment to defendant, and the order is otherwise affirmed, without costs. Defendant is the principal of certain corporate owners of a block of real property located in midtown Manhattan. On March 11, 1980 defendant engaged plaintiff as broker for said properties, with the specific provision in their written agreement that plaintiff’s “commission shall not be earned upon execution of a contract of sale [but shall be] earned and payable when the purchaser takes title to the property and be paid out of the proceeds of such sale.” The brokerage agreement further provided that all items and provisions of any contract entered into for the sale of the property, including, without limitation, the price, had to be acceptable to defendant. Not long thereafter plaintiff located a party interested in buying the property. This prospective purchaser and defendant entered into a preliminary, written agreement setting out the essential terms of the sale, including purchase price. But for reasons not sufficiently clear from a reading of the record, the sale did not go through: defendant backed out. Plaintiff now wants his brokerage commission, contending that since he procured a buyer who was ready, willing and able to perform all of the terms defendant required, defendant cannot, by his own bad-faith actions, avoid his liability to plaintiff under the agreement. Special Term refused to find such an estoppel, holding in essence that the brokerage agreement should be strictly construed. In large part that court relied upon its recent ruling, in an action by the would-be purchaser against this defendant, that no contract for sale had been made when those two entered