Opinion
05-31-2016
Nissan MIZRAHI, Plaintiff–Appellant, v. Gregory R. HOVAS, et al., Defendants–Respondents.
Law Offices of Michael N. David, New York (Stacy N. Baden of counsel), for appellant. Mitchell B. Craner, New York, for respondents.
Law Offices of Michael N. David, New York (Stacy N. Baden of counsel), for appellant.
Mitchell B. Craner, New York, for respondents.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 29, 2015, which granted defendants' motion, pursuant to CPLR 3211(a)(7), to dismiss the amended complaint for failure to state a cause of action, unanimously affirmed, without costs. Although a real estate broker who produces a person ready and willing to enter into a contract upon the seller's terms, is generally entitled to a commission, the “parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement” (Feinberg Bros. Agency v. Berted Realty Co., 70 N.Y.2d 828, 830, 523 N.Y.S.2d 439, 517 N.E.2d 1325 [1987], citing Levy v. Lacey, 22 N.Y.2d 271, 274, 292 N.Y.S.2d 455, 239 N.E.2d 378 [1968] ). The brokerage agreements unambiguously conditioned plaintiff's entitlement to a commission on the “sale” and “purchase” of the subject property, which commission was to be paid at closing. As the sale was never consummated, and no closing took place, plaintiff did not earn his commission (see Liggett Realtors, Inc. v. Gresham, 38 A.D.3d 214, 831 N.Y.S.2d 59 [1st Dept.2007] Corcoran Group v. Morris, 107 A.D.2d 622, 623–624, 484 N.Y.S.2d 7 [1st Dept.1985], affd. 64 N.Y.2d 1034, 489 N.Y.S.2d 66, 478 N.E.2d 207 [1985] ). Contrary to plaintiff's contention on appeal, there is no indication that defendants' failure to close was the result of their conduct. Indeed, in Sapir v. Hovas, 71 A.D.3d 566, 897 N.Y.S.2d 92 (1st Dept.2010), a prior action involving this same aborted sale, this Court affirmed the dismissal of the purchaser's action for recovery of the down payment, on the ground that he was the defaulting party.
We have considered appellant's remaining arguments and find them unavailing.
TOM, J.P., MAZZARELLI, ANDRIAS, MANZANET–DANIELS, GESMER, JJ., concur.