| Pinnacle Realty of N.Y., LLC v 255 Butler, LLC |
| 2015 NY Slip Op 01623 [125 AD3d 952] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Pinnacle Realty of New York, LLC,Respondent, v 255 Butler, LLC, et al., Appellants. |
Miller Law Offices, PLLC, Lawrence, N.Y. (Scott J. Farrell and Jeffrey H. Miller ofcounsel), for appellants.
Berg & David PLLC, Brooklyn, N.Y. (David Berg and Abraham David ofcounsel), for respondent.
In an action to recover a real estate brokerage commission, the defendants appealfrom so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated April10, 2013, as denied their motion pursuant to CPLR 3211 (a) to dismiss thecomplaint.
Ordered that the order is reversed insofar as appealed from, with costs, and thedefendants' motion pursuant to CPLR 3211 (a) to dismiss the complaint is granted.
The plaintiff, a real estate broker, commenced this action to recover a brokeragecommission, based on the allegation that it procured a buyer who was ready, willing, andable to purchase the defendants' commercial property in Brooklyn upon terms agreed towith the defendants. The defendants moved pursuant to CPLR 3211 (a) to dismiss thecomplaint.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must"accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit withinany cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825, 827 [2007][internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88[1994]; Agai v Liberty Mut.Agency Corp., 118 AD3d 830, 831-832 [2014]). "Where evidentiary material issubmitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), and the motion is not converted into one for summary judgment, the questionbecomes whether the plaintiff has a cause of action, not whether the plaintiff has statedone and, unless it has been shown that a material fact as claimed by the plaintiff to be oneis not a fact at all and unless it can be said that no significant dispute exists regarding it,dismissal should not eventuate" (Agai v Liberty Mut. Agency Corp., 118 AD3dat 832; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
"To establish the right to a commission, a broker must demonstrate that he or sheproduced a ready, willing, and able purchaser who came to a meeting of the minds withthe seller as to all of the material terms of the sale" (Heelan Realty & Dev. Corp. v Ocskasy, 27 AD3d 620,621 [2006]; see Kaplon-BeloAssoc., Inc. v D'Angelo, 79 AD3d 930, 930 [2010]; Kling Real Estate vDePalma, 306 AD2d 445, 446 [2003]). Here, the parties' submissions, whichincluded printouts of emails and drafts [*2]of contracts,established that the defendants and the prospective purchaser did not come to a meetingof the minds as to the essential terms of the sale and, thus, disproved the plaintiff'sallegation that it procured a buyer who was ready, willing, and able to purchase theproperty (see Kling Real Estate v DePalma, 306 AD2d at 445-446; 2001 RealEstate: Space Catalyst v DiBenedetto, 207 AD2d 442 [1994]; see also Langer v Dadabhoy,44 AD3d 425, 426 [2007]; see generally Brause v Goldman, 10 AD2d 328,332 [1960], affd 9 NY2d 620 [1961]). Since the evidentiary submissionsdemonstrated that this material fact alleged by the plaintiff to be one was "not a fact atall" and "no significant dispute exists regarding it" (Guggenheimer v Ginzburg,43 NY2d at 275), the Supreme Court should have granted the defendants' motionpursuant to CPLR 3211 (a) to dismiss the complaint.
In light of our determination, the defendants' remaining contentions need not bereached. Mastro, J.P., Leventhal, Miller and Maltese, JJ., concur.