Opinion
No. CA 07-01471.
March 14, 2008.
Appeal and cross appeal from an amended order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered March 26, 2007. The amended order, among other things, denied that part of defendants' motion for summary judgment with respect to defendant Oak Hill Family Park, LLC.
DAVID M. KAPLAN, PENFIELD, FOR DEFENDANT-APPELLANT.
WOODS OVIATT GILMAN LLP, ROCHESTER (MEGHAN M. LYNCH OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.
Present: Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.
It is hereby ordered that the amended order so appealed from is unanimously modified on the law by granting that part of the motion for summary judgment dismissing the complaint against defendant Oak Hill Family Park, LLC and dismissing the complaint against that defendant and as modified the amended order is affirmed without costs.
Memorandum: Plaintiff, a mortgage broker, commenced this action seeking a brokerage commission pursuant to the terms of the mortgage loan application of defendant Oak Hill Family Park, LLC (Oak Hill). Supreme Court granted that part of defendants' motion for summary judgment dismissing the complaint against defendant Robert Cassidy but denied that part of the motion for summary judgment with respect to Oak Hill. We conclude that Oak Hill also was entitled to summary judgment dismissing the complaint against it, and we therefore modify the amended order accordingly.
"[A] mortgage broker earns a commission when it obtains a commitment letter from a lender which meets all the terms and conditions of the loan which the borrower stipulated to in the agreement with the broker" ( Multiloan Mtge. Co. v Asian Gardens, 303 AD2d 658, 660). Here, there was no agreement between the parties setting forth the terms and conditions of the loan that would have to be met in order for plaintiff to receive its commission. In addition, the loan application stated that the interest rate of the loan would not be determined until two days before the closing, and thus it is unclear on the record before us whether the lender was in fact a willing lender ( see generally Ro-Stan Equities v Schechter, 44 AD2d 577). In any event, we note that Cassidy, on behalf of Oak Hill, made a number of handwritten modifications to the loan application, thus indicating that the loan proposal procured by plaintiff was not equivalent to the loan sought by Oak Hill and that, as a consequence, plaintiff would not have been the procuring cause of the loan that Oak Hill might have received ( see Omni Funding Corp. v Minskoff, 281 AD2d 288, lv denied 96 NY2d 716). Thus, plaintiffs right to a commission never accrued ( see id.; see generally Howard Taylor Co. v Terra Capital Assoc., 292 AD2d 836).