Opinion
27
January 21, 2003.
Order, Supreme Court, New York County (Helen Freedman, J.), entered March 21, 2001, which, inter alia, granted the motion of defendant Lawrence Kupferschmid for summary judgment dismissing the complaint as against him in this action for a brokerage commission, unanimously affirmed, with costs.
Kenneth P. Horowitz, for plaintiff-appellant.
Robert J. Berman, for defendant-respondent.
Tom, J.P., Buckley, Rosenberger, Friedman, Marlow, JJ.
Since the sale of the subject property and plaintiff broker's entitlement to a commission thereon were contingent upon the satisfaction of a condition which went unsatisfied through no fault of defendant Lawrence Kupferschmid, summary judgment dismissing the complaint against Lawrence Kupferschmid was proper (compare Carnegie v. Abrams, 37 A.D.2d 327 and Heelan Realty Dev. Corp. v. Skyview Meadows Dev. Corp., 204 A.D.2d 601). We note that dismissal of the complaint as against defendant-respondent was additionally warranted since plaintiff failed to produce a buyer ready and willing to purchase the property on terms acceptable to defendant-respondent (see Lane — Real Estate Dept. Store v. Lawlet Corp., 28 N.Y.2d 36, 42). The "marked-up" contract returned to defendant-respondent by the lawyer for the buyer constituted a counter-offer (see Tencza v. Hyland, 171 A.D.2d 1057, lv denied 78 N.Y.2d 859) which defendant-respondent did not, and was not in good faith obliged to, accept.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.