In determining whether brokers will be deemed to have earned their commissions, "[t]he prospective buyer's financial ability is . . . an essential element, and one which plaintiff was required to establish in order to recover" ( Rusciano, 62 NY2d at 697-698). Indeed, "[t]he burden lies with the broker to establish that its prospective purchaser was financially able to meet the purchase price" ( O'Connor Realty Servs. v Higgins, 149 AD2d 492, 492; see also Trenga Realty v Wedgewood Homes, 138 AD2d 875 [purchasers not in a financial position to go through with contract; therefore broker not entitled to commission]; Globerman v Lederer, 281 App Div 39 [not enough for purchaser to state he could have purchased the property; some details had to be shown from which a factfinder could infer that purchaser possessed financial ability]). On their motion, defendants showed prima facie that plaintiff failed to procure a purchaser who was financially able to pay $154,000,000 at closing for the three Manhattan properties.
The defendant Craig Winkler was entitled to vacatur of the default judgment as against him because he was not properly served with process in this action ( see CPLR 308). Further, the Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was to vacate the March 12, 2004, judgment as against the defendant Suffolk Donut Corp. (hereinafter SDC), because SDC demonstrated a reasonable excuse for its brief delay in answering and demonstrated the existence of an arguably meritorious defense based on the prospective purchaser's inability to purchase the property on SDC's terms ( see CPLR 5015 [a] [1]; cf. Rusciano Realty Servs. v Griffler, 62 NY2d 696, 697; O'Connor Realty Servs. v Higgins, 149 AD2d 492). Moreover, we note that, well before the order appealed from was issued, the plaintiff's counsel expressly consented to the defendants' request to open their default, and accepted service of their answer.
An "able" purchaser is one who has the financial ability to perform. The burden lies with the broker to establish that its prospective purchaser was financially able to meet the purchase price ( see O'Connor Realty v. Higgins, 149 A.D.2d 492).
An "able" purchaser is one who has the financial ability to perform. The burden lies with the broker to establish that its prospective purchaser was financially able to meet the purchase price (see O'Connor Realty v Higgins, 149 AD2d 492 [1989]). In this action, defendant sellers made a prima facie showing of entitlement to judgment by submitting documentation indicating that the purchasers were unable to obtain a mortgage commitment in accordance with the terms of the contract of sale. This demonstrated that the prospective purchasers were not ready, willing and able to complete the transaction.
There is also no credible evidence that defendants took steps to frustrate an agreement on this issue. Thus, having failed to establish an agreement on this essential term and in the absence of bad faith on defendants' part, plaintiff is not entitled to a brokerage commission ( see, 2001 Real Estate: Space Catalyst v DiBenedetto, 207 AD2d 442, lv denied 84 NY2d 809). Plaintiffs proof suffers from a further deficiency in that it failed to prove that the Satriales had the financial ability to complete the transaction ( see, Rusciano Realty Servs. v Griffler, 62 NY2d 696, 697-698; O'Connor Realty Servs. v Higgins, 149 AD2d 492, 493). Lastly, we reject plaintiffs argument that Supreme Court should have disqualified defendants' attorney who was called as a witness by the Jackelows since his testimony cannot be considered to have been "necessary" ( see, S S Hotel Ventures Ltd. Partnership v 777 S H. Corp., 69 NY2d 437, 444-446; Morgasen v Federated Consultant Serv., 174 AD2d 656).
Appeal from the Supreme Court, Queens County (Joscelyn Smith, J.). Plaintiff broker established that he produced a prospective buyer ready, willing and able to purchase the property at the terms set by defendant seller, and that he is therefore entitled to his commission (O'Connor Realty Servs. v. Higgins, 149 A.D.2d 492). The testimony of plaintiff and his employee was sufficient to show a meeting of the minds concerning the price and financing terms. Defendant did not controvert the buyer's testimony that the latter had a multimillion dollar line of credit at the Bank of India. Defendant's challenge to the court's charge regarding the buyer's financial ability is not preserved for appellate review due to the absence of appropriate objection.
Notwithstanding, it cannot be determined as a matter of law whether defendant, by her actions as recounted by plaintiff, engaged in conduct designed to avoid paying commission by simultaneously executing the agreement and securing her own buyers without plaintiff's knowledge (seee.g. Stephen Hirshon, Ltd. v Coffey, 260 AD2d 465 [1999]), or whether, for instance, plaintiff was under an obligation to refer prospective buyers to plaintiff per paragraph 5 of the agreement, which would have thereby included the subject buyers. Further, plaintiff has not, in support of its own motion, conclusively established that it is entitled to its commission by virtue of procuring its own buyer since plaintiff did not submit evidence thereon to sufficiently establish that said prospective buyer was indeed a ready, willing, and able one (see e.g. Island Assoc. Real Estate, Inc. v Doukas, 130 AD3d 684 [2015]; O'Connor Realty Servs, Inc. v Higgins, 149 AD2d 492 [1989]). Plaintiff annexes a copy of an offer binder for its prospective buyer in opposition to defendant's motion for summary judgment.