Opinion
No. 139 SSM 14.
Decided May 6, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 17, 2009. The Appellate Division, with two Justices dissenting, modified, on the law, a judgment of the Supreme Court, New York County (Walter B. Tolub, J.), entered after a nonjury trial, which had awarded plaintiff damages in the total amount of $83,350.75, consisting of individual awards of $5,880, $500 and $60,000, plus interest on each. The modification consisted of vacating the individual awards of $5,880 and $60,000 and the interest on each, thereby reducing the total award to $500 plus interest. The Appellate Division affirmed the judgment as modified.
Pursuant to an exclusive broker's agreement between plaintiff real estate broker and defendant property owner, plaintiff arranged for the sale of certain property owned by defendant. The broker's agreement provided that the commission was due and payable at the closing and transfer of title, and that "[i]n the event[] title does not pass due to the Owner's willful default, commission shall still be deemed earned by [plaintiff]." After the initial buyer failed to close, defendant entered into a contract with another buyer. Plaintiff subsequently commenced the present action for commissions allegedly owing.
The Appellate Division concluded that under the plain language of the brokerage agreement, since the fact that title did not pass to the initial buyer was not due to defendant's willful default, plaintiff was not entitled to its $5,880 commission on that transaction; that the parties did not orally modify the agreement to provide for the payment of commission in the event of a buyer's default; and that with respect to plaintiffs $60,000 commission on the eventual sale of the property, plaintiff failed to establish that the parties orally modified their exclusive broker's agreement to extend its term.
Parker Realty Group, Inc. v Petigny, 68 AD3d 571, affirmed.
Kip Lenoir, New York City, for appellant.
Howard L. Sherman, Ossining, for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs. Recovery under the theory of quantum meruit is not appropriate where, as here, an express contract governed the subject matter involved ( Miller v Schloss, 218 NY 400, 406-407 [1916]; see also Julien J. Studley, Inc. v New York News, 70 NY2d 628, 629). Additionally, plaintiff failed to establish that the parties modified their exclusive brokerage agreement. In the absence of a valid governing exclusive brokerage agreement, plaintiff was not entitled to a commission on the sale to the ultimate buyer, as it was not the procuring cause of the sale ( see Greene v Hellman, 51 NY2d 197, 206).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.