Sabbagh v. Pantano

Feb 28, 1991
Versions:170 A.D.2d 411

Order and Judgment, Supreme Court, New York *412County (Irma Vidal Santaella, J.), entered February 6, 1990 and February 27, 1990, respectively, which granted plaintiffs motion for summary judgment and denied defendant’s cross-motion for, inter alia, an order pursuant to CPLR 3212 (f), unanimously affirmed, with costs.

Plaintiff, a real estate broker, entered into an "exclusive” brokerage agreement to sell defendant’s house for a period of six months. Although defendant sold his house during that six month period, he refused to pay plaintiff’s commission, contending that he and plaintiff orally modified the brokerage agreement to exclude any sale to this ultimate purchaser. No bona fide material questions of fact exist which preclude the grant of summary judgment to plaintiff. The record shows that plaintiff was unaware of any negotiations regarding the sale of the house, that defendant informed plaintiff that the house was rented, and paid plaintiff $4,000 for his efforts. Plaintiff’s acceptance of the $4,000 did not estop him from seeking his commission on the sale of the house, as the money was accepted without full knowledge of the material facts which would give rise to an accord and satisfaction. (See, e.g., Consolidated Edison Co. v Jet Asphalt Corp., 132 AD2d 296.) Concur—Carro, J. P., Milonas, Ellerin, Kupferman and Rubin, JJ.