Opinion
November 22, 1967
Appeal from an order and judgment of the Supreme Court, at Special Term, which granted summary judgment to plaintiff against the defendant, severed the actions and denied third-party plaintiff's cross motion for summary judgment against the third-party defendants. Pursuant to an exclusive contract the defendant, Colonie Construction Corporation, hereinafter Colonie, listed certain residential property with plaintiff, a real estate broker, for the period from July 8, 1965 to September 30, 1965. This contract provided that Colonie would pay the broker's commission to plaintiff if the property was sold during the period of the exclusive contract "or if it should be sold within one year from its expiration to anyone with whom you have had negotiations". During the contract's exclusive period, plaintiff procured third-party defendants, Mr. and Mrs. Ero, who contracted to purchase for $23,900. This became null and void, pursuant to a condition therein, when the prospective purchasers were unable to obtain financing. Following the expiration of the exclusive listing contract, but within the one year specified therein, Harold Ero on October 20, 1965 entered into a contract to purchase the premises directly with Colonie without plaintiff being involved in the immediate negotiations. The contract was to be examined by the attorney for Ero and it provided that the purchaser "represents that no broker brought about this sale, and agrees to hold seller harmless from any claim for a commission." Plaintiff commenced an action for his commission and Colonie cross-claimed against the purchaser under the hold harmless provision of the October sales contract. Summary judgment was properly awarded the broker against the owner and appellant does not seriously challenge this determination. The real issue before us is whether the hold harmless provision considered in the context of the facts stated in the record entitles appellant to summary judgment over against the purchaser. We do not think so. The hold harmless clause stated that "no broker brought about this sale". This, in and of itself, is a factual question, and if such is the case, a matter of construction arises as to whether or not the indemnification provision was to save the owner harmless under any and all circumstances or whether it was only operative in a factual situation where the broker actually "brought about this sale". These questions of fact, including that of intent, must be resolved at a trial. Order and judgment affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Aulisi, J.