| Steve Elliot, LLC v Teplitsky |
| 2009 NY Slip Op 01104 [59 AD3d 523] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Steve Elliot, LLC, Respondent, v Michael Teplitsky et al.,Appellants. |
—[*1] Dan M. Rice, New York, N.Y., for respondent.
In an action to recover a real estate brokerage commission, the defendants appeal from anorder of the Supreme Court, Kings County (Knipel, J.), dated February 25, 2008, which deniedtheir motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
Where evidentiary material is submitted and considered on a motion to dismiss a complaintpursuant to CPLR 3211 (a) (7), the court must determine whether the plaintiff has a cause ofaction, not whether the plaintiff has stated one (see Guggenheimer v Ginzburg, 43 NY2d268, 275 [1977]; Fishberger vVoss, 51 AD3d 627, 628 [2008]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d530 [2007]). "[U]nless it has been shown that a material fact as claimed by the [plaintiff] tobe one is not a fact at all and unless it can be said that no significant dispute exists regarding it. . . dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d268, 274-275 [1977]).
Applying this standard here, the Supreme Court properly denied the defendants' motion todismiss the complaint. As a general rule, a broker earns a commission where he or she hasproduced a buyer who is ready, willing, and able to purchase the property upon terms that areacceptable to the seller (see Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828,830 [1987]; Eastern Consol. Props. v Lucas, 285 AD2d 421, 422 [2001]). However,parties to a brokerage agreement are free to add whatever conditions they wish to theiragreement, including a condition that closing of title occur before the [*2]broker is deemed to have earned a commission (see Srour v Dwelling Quest Corp., 5NY3d 874, 875 [2005]; Feinberg Bros. Agency v Berted Realty Co., 70 NY2d at830). Contrary to the defendants' contention, the subject brokerage agreement does notunambiguously provide that the closing of title must take place before the broker is deemed tohave earned a commission (see Feinberg Bros. Agency v Berted Realty Co., 70 NY2d at831; Sopher v Martin, 243 AD2d 459, 461 [1997]; Greiner-Maltz Co. v Kalex Chem.Prods., 142 AD2d 552 [1988]). Accordingly, it cannot be said that the defendants refuted thematerial facts alleged in the complaint by conclusively demonstrating that the plaintiff's right to acommission was contingent upon the closing of title. Furthermore, there is a significant factualdispute as to whether the parties intended the commission be earned only upon closing, orinstead intended that it be earned upon the procurement of a ready, willing and able buyer, withthe payment of the commission deferred until closing (see Greiner-Maltz Co. v Kalex Chem.Prods., 142 AD2d 552 [1988]). Mastro, J.P., Florio, Balkin and Eng, JJ., concur.