| Granger v Schachenmayr |
| 2008 NY Slip Op 02543 [49 AD3d 1079] |
| March 20, 2008 |
| Appellate Division, Third Department |
| Dale Granger et al., Appellants, v Hans Schachenmayr et al.,Respondents. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Karla W. Buettner of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Krogmann, J.), entered January31, 2007 in Warren County, which, upon reargument, granted defendants' motion for summaryjudgment dismissing the complaint.
In October 2003, defendants entered into a brokerage agreement with plaintiff Levack RealEstate relating to the sale of an inn owned by defendants in the Village of Lake Placid, EssexCounty. The nonexclusive agreement provided, among other things, that a four percentcommission would be paid to Levack, as the real estate broker, in the event that "a transfer, saleor exchange of [the] property is made or effected, or agreed upon" with a purchaser procured byLevack. Plaintiff Dale Granger, a real estate agent associated with Levack, subsequently procuredpotential buyers, Thomas Terry and James Terry. In July 2005, defendants and Granger executedan extension of the original brokerage agreement providing that Granger was the agent of recordfor the sale to the Terrys and that "[t]he agreed [upon] commission of three and one half(3½) percent will be payable at closing." Although defendants and the Terrys thereafterengaged in negotiations regarding the sale and the Terrys placed a $50,000 deposit in escrow,defendants ultimately informed the Terrys that they had decided to convey the property to anephew rather than sell it.
Thereafter, plaintiffs commenced this action alleging that inasmuch as they produced a [*2]ready, willing and able buyer, they were entitled to a commission of$169,610 on the Terrys' proposed purchase price of $4,846,000. Following joinder of issue,defendants moved for summary judgment dismissing the complaint. Supreme Court ultimatelygranted defendants' motion and dismissed the complaint. Plaintiffs appeal and we now affirm.
As plaintiffs assert, "in the absence of an agreement to the contrary, a real estate broker willbe deemed to have earned his [or her] commission when he [or she] produces a buyer who isready, willing and able to purchase at the terms set by the seller" (Lane—Real EstateDept. Store v Lawlet Corp., 28 NY2d 36, 42 [1971]; see Posson v Hayes, 37 AD3d 936, 937 [2007]; Realty Invs. ofUSA v Bhaidaswala, 254 AD2d 603, 604 [1998]). Nevertheless, it is well settled that " 'mereagreement as to price on a proposed sale of real property does not constitute a meeting of theminds of vendor and vendee so as to entitle the real estate broker to commissions. The partiesmust be brought to agreement with respect to all terms customarily encountered in such atransaction' " (Kaelin v Warner, 27 NY2d 352, 355 [1971] [citation omitted]; seePosson v Hayes, 37 AD3d at 937-938; Robison v Sweeney, 301 AD2d 815, 817-818[2003]).
Here, the "non-binding letter of intent" signed by the parties to the proposed sale stated thatits "sole purpose" was "to express [the Terrys'] interest in discussing the terms and conditions ofthe sale of those assets" constituting defendants' inn. The letter further provided that it was "notintended to form a binding contract or agreement in any respect," and set forth various terms onwhich the parties had not yet agreed, including "closing date; . . . representationsand warranties; . . . conduct of business pending closing; . . .conditions precedent to closing" and the Terrys' option to purchase adjacent property owned bydefendants. Although plaintiffs rely upon an e-mail from Thomas Terry expressing frustration atdefendants' decision not to sell the property as evidence that the parties had reached a prior oralagreement on the sale, the e-mail acknowledged that no binding agreement had been reached.Moreover, Terry submitted an affidavit averring that the parties "never reached an agreement. . . on the actual terms for the purchase and sale of the . . . property,"including the option to purchase the adjacent property, which was an important part of thetransaction. Inasmuch as the foregoing established that there was no " 'meeting of the minds onthe essential terms of the transaction' that would trigger . . . entitlement to acommission" and plaintiffs raised no triable issues of fact in response, Supreme Court properlygranted defendants' motion for summary judgment dismissing the complaint (Posson vHayes, 37 AD3d at 938 [citation omitted]; see Devine Real Estate, Inc. v Brennan, 42 AD3d 646, 647 [2007];cf. Robison v Sweeney, 301 AD2d at 818-819).
Finally, given the nonbinding nature of the letter of intent, the provision that the brokerageagreement was nonexclusive and the lack of any evidence in the record that defendants sold theproperty to a third party, plaintiffs' claim that defendants breached an implied covenant of goodfaith and fair dealing is unavailing (see Devine Real Estate, Inc. v Brennan, 42 AD3d at647-648).
Spain, Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.