Opinion
July 15, 1994
Appeal from the Supreme Court, Queens County, Graci, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Order unanimously reversed on the law with costs, cross motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendants' cross motion for summary judgment because there are triable issues of fact with respect to plaintiff's entitlement to a broker's commission as a result of an implied contract (see, Briggs v. Rector, 88 A.D.2d 778; Smyczynski v Goeseke, 88 A.D.2d 765). The record establishes that plaintiff affixed a sign to defendants' building, allegedly "with the owner's permission and consent", listing plaintiff as the exclusive agent. The ultimate tenant observed that sign and contacted plaintiff, who arranged for a meeting with the owners' representatives and an inspection of the building.
Defendants contend that plaintiff merely introduced the ultimate tenant to the owners of the property and did not otherwise participate in the negotiations that led to the lease agreement. Plaintiff, however, offered evidentiary proof in admissible form that defendants stated that they had another transaction pending and were not willing to wait the length of time necessary to complete the transaction with plaintiff's customer. Defendants then contacted plaintiff's customer directly without plaintiff's knowledge or consent and negotiated a lease agreement with that customer without any involvement by plaintiff. At the same time, defendants continued to advise plaintiff that there was "no change" in the situation. It is well established that an owner may not terminate the activities of a broker in bad faith and as a mere device to escape the payment of the broker's commission (see, Trylon Realty Corp. v. Di Martini, 40 A.D.2d 1029, 1030, affd 34 N.Y.2d 899; Aegis Prop. Servs. Corp. v. Hotel Empire Corp., 106 A.D.2d 66, 72). Thus, we conclude that a triable issue of fact exists whether plaintiff was the procuring cause of the lease and hence entitled to a broker's commission (see, Spalt v. Lager Assocs., 177 A.D.2d 879).