Opinion
April 10, 1989
Appeal from the Supreme Court, Putnam County (Dickinson, J.).
Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.
It is well settled that "in the absence of an agreement to the contrary, a real estate broker will be deemed to have earned his commission when he produces a buyer who is ready, willing and able to purchase at the terms set by the seller" (Lane — Real Estate Dept. Store v. Lawlet Corp., 28 N.Y.2d 36, 42). However, a purchaser is not considered able to perform unless he is financially able to complete the transaction (see, Trenga Realty v. Wedgwood Homes, 138 A.D.2d 875; Blackmore v. Wigne Land Corp., 97 A.D.2d 889). The burden lies with the broker to establish that its prospective purchaser was financially able to meet the purchase price (see, Rusciano Realty Servs. v. Griffler, 62 N.Y.2d 696; Concordant Assocs. v. Slutsky, 104 A.D.2d 920).
In this case, the plaintiff failed at trial to offer any evidence of the prospective purchaser's financial ability to complete the transaction. The binder and good-faith deposit cannot be considered evidence of the prospective purchaser's financial ability. The binder contained no information concerning the prospective purchaser's financial status. Moreover, the good-faith deposit, in the form of a nonnegotiated check, provides no evidence of the prospective purchaser's ability to complete the transaction. Since no other evidence of the prospective purchaser's financial ability was adduced at trial we conclude that the plaintiff did not meet its burden of proving that the purchaser was able to purchase the property (see, Rusciano Realty Servs. v. Griffler, supra; Concordant Assocs. v Slutsky, supra).
In light of our determination, we do not address the defendant's remaining contention. Thompson, J.P., Bracken, Brown and Rubin, JJ., concur.