Opinion
Submitted October 13, 1999
November 15, 1999
In an action to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Gerard, J.), dated June 22, 1999, as denied that branch of their motion which was to dismiss the first, second, and fourth causes of action pursuant to CPLR 3211(a)(1) and (7).
Richard S. Naidich, Bellmore, N.Y., for appellants.
David Bernheim, N. Massapequa, N.Y. (Stuart E. Davis of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the first, second, and fourth causes of action is granted, and the complaint is dismissed in its entirety.
The Supreme Court improperly denied that branch of the defendants' motion which was to dismiss the first, second, and fourth causes of action. The brokerage agreement at issue provided for the payment of a commission to the plaintiff if "the transaction is in fact consummated"; that is, "when, as and if title and the business transaction actually close". Although the plaintiff produced a prospective buyer for the purchase of the defendants' business, the defendants and the prospective buyer never entered into a contract for the sale. Therefore, the plaintiff is not entitled to recover any commission ( see, Graff v. Billet ( 101 A.D.2d 355, affd 64 N.Y.2d 899; Cunningham Inc. v. Nugent St. Corp., 202 A.D.2d 649; R.L. Friedland Realty v. Modern Cabinets Corp., 194 A.D.2d 657; Cook/Pony Farm Real Estate v. Spartan Enters., 157 A.D.2d 766; see also, Eastern Consol. Properties, Inc. v. Adelaide Realty Corp., 261 A.D.2d 225 [1st Dept., May 18, 1999]).
O'BRIEN, J.P., SULLIVAN, GOLDSTEIN, and FEUERSTEIN, JJ., concur.