Opinion
Argued January 18, 2000
March 17, 2000
In an action, inter alia, to recover a brokerage commission, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 17, 1999, as denied those branches of its motion which were for summary judgment dismissing the second and third causes of action to recover damages for breach of contract and to recover based on quantum meruit, respectively.
Cahn Wishod Knauer, LLP, Melville, N.Y. (Eugene L. Wishod of counsel), for appellant.
Dollinger, Gonski Grossman, Carle Place, N.Y. (Matthew Dollinger of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
We agree with the Supreme Court that there are triable issues of fact as to whether there was a brokerage agreement between the parties and, if so, what the material terms of that agreement were, including when a commission became due. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract (see, Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 27 N.Y.2d 410; cf., Dwelling Quest Corp. v. Greater N.Y. Sav. Bank, 246 A.D.2d 431).
Inasmuch as there is a bona fide dispute as to the existence of a contract, the plaintiff may proceed on theories of breach of contract and quantum meruit (see, Curtis Props. Corp. v. Giref Cos., 236 A.D.2d 237; Joseph Sternberg, Inc. v. Walber 36th St. Assocs., 187 A.D.2d 225).
BRACKEN, J.P., McGINITY, LUCIANO, and FEUERSTEIN, JJ., concur.