Opinion
July 25, 1983
In an action to compel the specific performance of an alleged contract for the sale of realty, defendants Burnett, Abrahams and Burnett Real Estate, Inc., appeal from so much of a judgment of the Supreme Court, Suffolk County (D'Amaro, J.), dated July 21, 1982, as, dismissed their cross motion for summary judgment on their cross claim against defendants Graham and Smith to recover a brokerage commission and, in effect, dismissed said cross claim. Judgment reversed insofar as appealed from, on the law, with costs, cross motion denied, and cross claim severed. The existence of triable issues of fact regarding the question of whether the minds of the parties to the underlying real estate transaction had ever "met" with respect to the essential contract terms precludes the granting of summary judgment dismissing appellants' cross claim to recover a brokerage commission (see Kaelin v Warner, 27 N.Y.2d 352; see, also, Penzotti v Broda Mach. Co., 37 A.D.2d 340, 342, affd 33 N.Y.2d 815; cf. David Day Realty v Farkas, 75 A.D.2d 783; Adler Realty Co. v Benerofe, 42 A.D.2d 715, affd 34 N.Y.2d 583). In this regard, we note that the absence of an enforceable contract between the defendants-respondents and the prospective purchasers due to the lack of a sufficient writing to satisfy the Statute of Frauds (General Obligations Law, § 5-703) is not determinative of appellants' right to recover commissions (see General Obligations Law, § 5-701, subd a, par 10; Restatement, Agency 2d, § 445, Comment d, cited with approval in Kaelin v Warner, supra, p 355). Gibbons, J.P., Thompson, Gulotta and Boyers, JJ., concur.