Opinion
June 6, 1995
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Plaintiff's right to real estate brokerage commissions was defined by the terms of the May 25, 1993 brokerage agreement ( Tankers Intl. Nav. Corp. v. National Shipping Trading Corp., 116 A.D.2d 40, 43; see also, Schlesinger Co. v. Delson Gordon, 184 A.D.2d 393, lv denied 80 N.Y.2d 761), which provided that plaintiff's commission "will not be deemed earned or due or payable until and unless title actually closes pursuant to a signed written contract." It is undisputed that the defendant sellers never executed the proposed contract as modified and executed by plaintiff's principals. Accordingly, the condition precedent to plaintiff's right to obtain commissions never occurred, and plaintiff's claim of willful default has no merit in the absence of a binding agreement which defendants may be said to have willfully breached ( see, Friedland Realty v. Modern Cabinets Corp., 194 A.D.2d 657; Graff v. Billet, 64 N.Y.2d 899, affg 101 A.D.2d 355). Plaintiff's additional argument that payment of the $1,000 by Elissa Myers constituted part payment is also without merit since, according to plaintiff's own statements, such payment was intended by Myers to be outside the scope of the brokerage agreement.
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.