Opinion
July 10, 1987
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Dillon, P.J., Callahan, Green, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Special Term correctly denied defendant's motion for summary judgment. The listing agreement entered into by the parties provided that plaintiff was entitled to a sales commission in the event of a sale of the property by anyone during the term of the listing agreement. Therefore, defendant could not have made a sale during this period without becoming liable to plaintiff for a sales commission. Plaintiff has submitted evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, with respect to the defenses of equitable estoppel and bad faith, which require a trial (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). In view of our determination that the listing agreement gave the exclusive right to sell, defendant's contention that plaintiff's claim is barred by the Statute of Frauds (General Obligations Law § 5-701 [a] [1]) is without merit.