Maurice B. Cunningham, Inc. v. Nugent Street

Full title: MAURICE B. CUNNINGHAM, INC., Respondent, v. NUGENT STREET CORP. et al.…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 28, 1994

202 A.D.2d 649 (N.Y. App. Div. 1994)

610 N.Y.S.2d 839

Opinion

March 28, 1994

Appeal from the Supreme Court, Suffolk County (Newmark, J.).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The brokerage agreement here provides for payment of a broker's commission "if and when title passes". "[S]ince no deal between the prospective purchaser and the seller ever materialized in legal, written form, the seller could not be in default of the broker's agreement and was free until then to negotiate with other prospective purchasers without becoming liable for a commission" (Graff v. Billet, 101 A.D.2d 355, 356-357, affd 64 N.Y.2d 899). The defendants' motion is therefore granted, and the complaint is dismissed. Balletta, J.P., Ritter, Copertino and Goldstein, JJ., concur.