679 N.Y.S.2d 179 | N.Y. App. Div. | 1998
Appeals (1) from an order of the Supreme Court (Rose, J.), entered January 23, 1998 in Broome County, which granted defendants’ motion to dismiss the complaint on the ground of a defense founded upon documentary evidence, and (2) from the judgment entered thereon.
Plaintiff, a real estate broker, entered into a May 20, 1997 written agreement with defendants
In October 1997, plaintiff commenced this action to collect a real estate broker’s commission upon the theory that there had
Because we conclude that the documentary evidence proffered in support of defendants’ motion by no means established a defense to plaintiffs cause of action as a matter of law, we are constrained to reverse Supreme Court’s order and judgment and deny the motion. We first note that defendants were clearly wrong in their essential premise that plaintiff was entitled to a commission only in the event of an actual sale or transfer of title to the property. As correctly contended by plaintiff and recognized by Supreme Court, the provision of the listing agreement previously set forth herein entitled plaintiff to a commission upon his “ ‘procuring] a prospect who ha[d] reached agreement with the seller on essential terms and [was] ready, willing and able to perform’ ” (Agawam Realty v Haggerty, 223 AD2d 518, 520, quoting Wykagyl Agency v Rothschild, 100 AD2d 934, 934-935; see, Hecht v Meller, 23 NY2d 301, 305; Boyer Realty v Perry, 208 AD2d 1024; Pacifico v Plate, 183 AD2d 986, 987).
We disagree with Supreme Court’s further conclusion, however, that the nonbinding nature of (and, possibly, the absence of some essential terms from) the letter of intent and addenda established a defense to the action as a matter of law. To the contrary, it is settled law that a broker’s right to a commission is not dependent upon the execution of a legally enforceable sales contract, so long as the seller and buyer have come to a meeting of the minds on the essential terms of the transaction (see, Balfour v Passarelli, 245 AD2d 720; Agawam Realty v Haggerty, supra). In our view, the writings submitted on defendants’ motion by no means preclude a finding that the parties came to such a meeting of the minds, either within or outside the bounds of those writings. We also agree with plaintiff that Supreme Court erred in considering Bhaidaswa
White, Peters, Spain and GrafFeo, JJ., concur. Ordered that the order and judgment are reversed, on the law, with costs, motion denied and defendants are directed to serve an answer within 10 days of the date of this Court’s decision.
Although not at all clear from the record, it appears that defendant Shree Swami Narayan L. L. C. is the owner of the property and that defendant Piyush Bhaidaswala is its principal. For the purpose of this appeal, we may treat defendants as the unitary entity that owned the subject real property, entered into the listing agreement with plaintiff and negotiated to sell the property.