That ruling was later affirmed by the Court of Appeals, which explicitly held that the "rule" permitting a broker to recover a commission if the seller willfully defaults "appl[ies] only if the seller and the broker's prospective buyer had already entered a sales contract, and the seller's `fault' or `default', within the meaning of the rule, would have reference solely to a breach of that sales contract." ( Graff v. Billet, supra, 64 N.Y.2d, at 901; see also, Corcoran Group v. Morris, 107 A.D.2d 622 [1st Dept 1985], affd 64 N.Y.2d 1034.) Thus, it is now well settled that before a broker may properly rely upon "willful default" language in a brokerage agreement such as the agreement in this case, the broker must demonstrate that a sales contract or agreement existed between the buyer and seller upon which the seller could be said to have "defaulted".

Since the complaint claims that BIAS was entitled to a commission upon sale of all or part of Sudamtex to the Bank, and such a sale never occurred, there is no basis for asserting that BIAS was entitled to a commission. See, e.g., Corcoran Group, Inc. v. Morris, 107 A.D.2d 622, 484 N.Y.S.2d 7, 8-9, aff'd, 64 N.Y.2d 1034, 489 N.Y.S.2d 66, 478 N.E.2d 207 (1985) (when commission agreement provides that broker is entitled to commission only upon completion of transaction, broker bears the risk that the transaction will not be consummated); see also Fed.R.Civ.P. 9(c) (pleading condition precedent).          Furthermore, there is no indication whatsoever in the complaint as to how UM & M's failure to sell Sudamtex to the Bank could be " wrongful."

The brokerage agreements unambiguously conditioned plaintiff's entitlement to a commission on the “sale” and “purchase” of the subject property, which commission was to be paid at closing. As the sale was never consummated, and no closing took place, plaintiff did not earn his commission (see Liggett Realtors, Inc. v. Gresham, 38 A.D.3d 214, 831 N.Y.S.2d 59 [1st Dept.2007] Corcoran Group v. Morris, 107 A.D.2d 622, 623–624, 484 N.Y.S.2d 7 [1st Dept.1985], affd. 64 N.Y.2d 1034, 489 N.Y.S.2d 66, 478 N.E.2d 207 [1985] ). Contrary to plaintiff's contention on appeal, there is no indication that defendants' failure to close was the result of their conduct.

Plaintiff did not produce an expert to contradict Hughes's opinion that the incident was mechanically impossible, and that other reasons for the elevator's shut down involved the safety features incorporated into the elevator itself, and not improper maintenance as she claims. Plaintiff's contention that the unlikelihood of an occurrence does not mean it is impossible rests on mere speculation, which is insufficient to defeat a motion for summary judgment ( see Corcoran Group v. Morris, 107 A.D.2d 622, 624, 484 N.Y.S.2d 7 [1985], affd. 64 N.Y.2d 1034, 489 N.Y.S.2d 66, 478 N.E.2d 207 [1985] ). The motion court incorrectly concluded that defendants had notice of the defect through previous incidents.

Here, the brokerage agreement unambiguously provided for payment of the commission "[a]t the closing of sale of the apartment, provided you have provided a qualified buyer and the deal consummates." The obligation to pay a broker's commission upon consummation of sale requires a formal act of closing ( see Donald Yoo [N.Y.] Corp. v Tauber Assoc., 281 AD2d 171). Absent any specific commitment by the seller to enter into the sales contract, which the buyer's counsel had conditioned, among other things, on execution within 24 hours, plaintiffs are not entitled to a brokerage commission ( see Graff v Billet, 64 NY2d 899, affg 101 AD2d 355; Corcoran Group v Morris, 107 AD2d 622, affd 64 NY2d 1034). The documentary evidence establishes that the conditions precedent to plaintiffs earning the commission were not fulfilled because the deal was never consummated ( see Battery Park Realty, Inc. v RKO Del, Inc., 18 AD3d 680; Thomas J. Hayes Assoc v Island Jeep Eagle, 266 AD2d 386).

In order to defeat defendants' motions, it was incumbent upon plaintiffs to show "the existence of a bona fide issue raised by evidentiary facts" ( Rotuba Extruders v. Ceppos, 46 NY2d 223, 231). "Reliance upon mere conclusions, expressions of hope or unsubstantiated allegations is insufficient" ( Corcoran Group v. Morris, 107 AD2d 622, 624, affd 64 NY2d 1034, citing, inter alia, Zuckerman v. City of New York, 49 NY2d 557, 562). In opposition, plaintiffs argued that Otis failed to reasonably inspect and maintain the elevator.

Plaintiff also asserts that after being released from the hospital several hours after the incident, he went to the curb outside the hospital where the damaged carts were placed; that before the accident there were five carts at the curb which had been outside for approximately three weeks waiting for Cardella to remove them; that after the accident there were six carts, only one of which was not discolored from the weather; and that the housing on one of the wheels of the sixth cart was "bent inward." Plaintiff concluded that this must have been the cart that fell because it was not weather-worn. Such conclusion is wholly speculative, there being no competent evidence that the cart on the curb that plaintiff described as having a bent wheel was the same cart that fell on him, and thus insufficient to defeat summary judgment ( see Corcoran Group v. Morris, 107 AD2d 622, 624, affd 64 NY2d 1034; Tungsupong, 213 AD2d at 238). Accordingly, the court should have granted Cardella's cross motion for summary judgment dismissing the hospital's cross claim as against it. Upon a search of the record, we dismiss plaintiff's remaining Labor Law § 241 (6) claim.

The clear and unambiguous language of the brokerage agreement provided that plaintiff would earn a commission "only if, as and when and not unless and until" the following occurred: (1) a written contract of sale satisfactory to the seller, fully executed and conditionally delivered to the parties thereto, (2) a closing of the sale, delivery of the deed and acceptance by the purchaser, and (3) the seller's receipt of the aggregate price pursuant to the contract. The parties' agreement thus speaks exclusively of a sale ( see Corcoran Group v. Morris, 107 AD2d 622, affd 64 NY2d 1034); the taking of the premises by condemnation was not an event that triggered the right to a commission ( Matter of New York City School Constr. Auth. [Briguglio — Empress Realty], 288 AD2d 224, 226). Nor can plaintiff recover under his second and fourth causes of action for quantum meruit, which only applies in the absence of an express agreement ( Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382). However, plaintiff's third cause of action seeks to recover in quantum meruit for services performed at Cornerstone's behest to obtain clear and marketable title, resulting in a settlement with a certain Mr. Bartholomei in order to quiet title.

The defendant seller demonstrated a prima facie entitlement to judgment as a matter of law by proffering evidence that the purchaser procured by the plaintiff failed to consummate the sale and that title never passed. Thus, a condition precedent to the payment of a commission did not occur (see Feinberg Bros. Agency v. Berted Realty Co., 70 N.Y.2d 828; Graff v. Billet, 64 N.Y.2d 899; Levy v. Lacey, 22 N.Y.2d 271; Cook/Pony Farm Real Estate v. Spartan Enters., 157 A.D.2d 766; Corcoran Group v. Morris, 107 A.D.2d 622, affd 64 N.Y.2d 1034). In opposition, the plaintiff failed to raise a triable issue of fact that the failure of title to pass was due to the defendant's fault or default (see Graff v. Billet, supra; Lane-Real Estate Dept. Store v. Lawlet Corp., 28 N.Y.2d 36; Levy v. Lacey, supra).

In the absence of a contract, there is no "Graff exception" that would amount to a seller's "willful default" here (Cimarron Realty 100 Ltd. v. Horner, 114 A.D.2d 924). The obligation to pay a broker's commission upon consummation of sale requires a formal act of closing (Corcoran Group v. Morris, 107 A.D.2d 622,affd 64 N.Y.2d 1034; White Sons v. La Touraine-Bickford's Foods, 50 A.D.2d 547, affd 40 N.Y.2d 1039). On at least three occasions in early 1998, plaintiff advised defendants that its commission was, upon consummation of the sale, to be drawn from "the proceeds of the closing" or "payable on closing," to which defendants confirmed, on February 13, that it would be paid from the sales price "at the time of settlement."