Opinion
May 7, 1990
Appeal from the Supreme Court, Putnam County (Dickinson, J.).
Ordered that the judgment is affirmed, with costs.
Although the general rule is that an appeal taken from an order which is followed by an entry of final judgment in the same action must fall and review may only be had upon appeal from the final judgment, we have, in the interest of justice, deemed the notice of appeal from the order to be a notice of appeal from the subsequent judgment (see, Hollander v. Cayton, 145 A.D.2d 605; Men's World Outlet v. Estate of Steinberg, 101 A.D.2d 854).
The plaintiff, a real estate broker, entered into an exclusive brokerage agreement with the defendant owners of realty, after having shown the property to a prospective purchaser, and without disclosing to the owners the existence of a prior business relationship with the purchaser. After the sale was consummated, the sellers refused to pay commissions to the broker, claiming that he had violated his fiduciary duty to the sellers, his principals. It is clear that a broker, as agent for an owner, owes a duty of good faith and loyalty to his principal (Matter of Goldstein v. Department of State, Div. of Licensing Servs., 144 A.D.2d 463; Matter of Grand Realty v. Cuomo, 58 A.D.2d 251), and it has been held that a broker who secretly represents both parties to a transaction cannot recover compensation from the party kept in ignorance of the dual employment (Procidano v Mautner, 70 Misc.2d 891, citing Erland v. Gibbons, 176 App. Div. 552). While a factual issue exists as to the broker's violation of his duty to the sellers, the sellers have failed to claim any damage resulting from the broker's alleged breach of duty. Since the sellers were not prejudiced by the alleged conflict of interest, we affirm the judgment in the broker's favor. Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.