We reverse and remand for a new trial. It is well established that, although the general rule is that a real estate broker earns its commission upon production of a party ready, willing and able to contract upon the principal's terms, the parties may depart from this rule by express agreement and impose other conditions before the commission is deemed to have been earned (see Feinberg Bros. Agency v. Berted Realty Co., 70 N.Y.2d 828, 830). In this case, the issue of whether the parties agreed that payment of rent was a condition precedent to the obligation to pay the commission should have been submitted to the jury, since "neither party can establish the precise terms of the oral agreement as a matter of law" (First New York Realty Co. v. DeSetto, 237 A.D.2d 219, 220; see also Feinberg Bros. Agency v. Berted Realty Co., supra, at 831;SageGroup Assocs. v. Dominion Textile (USA), 244 A.D.2d 281, 282). In this regard, we note that this case presents us with an oral brokerage agreement, not one set forth in an integrated writing.
There are issues of fact and credibility which are inappropriate for summary judgment treatment. (See, Bi Bo Chiu v. Malik, 86 AD3d 548 ; Dayan v. Yurkowski, 238 A.D.2d 541 ; T & L Redemption Center Corp. v. Phoenix Beverages, Inc., 238 A.D.2d 504 ; First New York Realty Co., Inc. v. DeSetto, 237 A.D.2d 219.)2.
In any event, the contradictory allegations of the parties have raised issues of fact and credibility which cannot be resolved on this motion. (See Bi Bo Chiu v Malik, 86 AD3d 548; Dayan v Yurkowski, 238 AD2d 541; T&L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219.) Disclosure
Questions of credibility should not be resolved by the court on a motion for summary judgment, based on affidavits or deposition testimony, but, rather, are best reserved for the trier of fact. See S.J. Capelin Assoc., Inc. v. Globe Manufacturing Corp., 34 NY2d 338 (1974); Curtis Properties Corp. v. Greif Companies, 212 AD2d 259 (1st Dept 1995); First New York Rlty. v. DeSetto, 237 AD2d 219 (1st Dept 1997). Janbar's Motion for Summary Judgment
. While the plaintiff did not produce documentation supporting the alleged oral promise (which would have resulted in a downward adjustment of over $400,000) and while the plaintiff may not have made specific reference to the alleged oral promise at the earliest stages of this litigation, such matters merely raise issues of credibility which may not be resolved on a motion for summary judgment (See, Dayan v Yurkowski, 238 AD2d 541; T L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219). Accordingly, this branch of the motion is denied.
In the case at bar, the conflicting evidence in the record concerning whether the plaintiffs crossed the defendants' property with the permission of the latter has created issues of fact and credibility which preclude summary judgment. (See, Janoff v Disick, 66 AD3d 963; Dayan v Yurkowski, 238 AD2d 541; T&L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219.)
In the case at bar, the conflicting evidence in the record concerning whether the plaintiffs crossed the defendants' property with the permission of the latter has created issues of fact and credibility which preclude summary judgment. (See, Janoff v Disick, 66 AD3d 963; Dayan v Yurkowski, 238 AD2d 541; T&L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219.)
The conflicting allegations of the parties regarding, inter alia, what notes were given and what notes, if any, were paid have created issues of fact and credibility which cannot be determined on a motion for summary judgment. ( See, Dayan v Yurkowski, 238 AD2d 541; TL Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219.)
For example, breaches of warranty made by the plaintiff in the stock transfer agreement, if any, do not void the handwritten agreement as a matter of law, but merely raise issues of fact and credibility pertaining to the plaintiff's causes of action which are inappropriate for resolution on a summary judgment motion. (See, Dayan v Yurkowski, 238 AD2d 541; T L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504;First New York Realty Co., Inc. v DeSetto. 237 AD2d 219.) That branch of the cross motion which pertains to the Deadman's Statute (CPLR 4519) is denied with leave to the defendants to raise appropriate objections at the trial of this action.
For example, breaches of warranty made by the plaintiff in the stock transfer agreement, if any, do not void the handwritten agreement as a matter of law, but merely raise issues of fact and credibility pertaining to the plaintiff's causes of action which are inappropriate for resolution on a summary judgment motion. ( See, Dayan v Yurkowski, 238 AD2d 541; T L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219.) That branch of the cross motion which pertains to the Deadman's Statute (CPLR 4519) is denied with leave to the defendants to raise appropriate objections at the trial of this action.