Summary
observing that, absent an agreement to the contrary, "the common-law rule is that `a broker who produces a person ready and willing to enter into a contract upon his employer's terms . . . has earned his commissions.'"
Summary of this case from Pachter v. Bernard HodesOpinion
171.
Argued October 20, 2005.
Decided November 22, 2005.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 9, 2004. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Appellate Term of the Supreme Court in the First Judicial Department (op 2003 NY Slip Op 50633[U]), which had affirmed a judgment of the Civil Court of the City of New York, New York County (Stuart Cohen, J.H.O.), entered after a non-jury trial, awarding plaintiff damages against defendant in the sum of $14,262, (2) vacated the judgment, and (3) dismissed the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of the Appellate Term, properly made?"
Srour v. Dwelling Quest Corp., 11 AD3d 36, reversed.
Law Offices of Steven M. Nachman, New York City ( Steven M. Nachman of counsel), for appellant.
Frederic Walker, New York City, for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the order of the Appellate Term reinstated. The certified question should not be answered upon the ground that it is unnecessary.
Although the common-law rule is that "a broker who produces a person ready and willing to enter into a contract upon his employer's terms . . . has earned his commissions," the "parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement" ( Feinberg Bros. Agency v. Berted Realty Co., 70 NY2d 828, 830 [internal quotation marks and citation omitted]). Here, the rental agreement obligated defendant-broker to assist plaintiff in renting a "suitable apartment" and provided that the broker's commission was to be paid "at the time of lease signing"; however, the apartment had become uninhabitable by the time the landlord signed the lease. Accordingly, defendant-broker did not satisfy the brokerage agreement's condition, and is not entitled to any commission.
Order reversed, etc.