Opinion
February 28, 1991
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
Plaintiff, a real estate broker, entered into an "exclusive" brokerage agreement to sell defendant's house for a period of six months. Although defendant sold his house during that six month period, he refused to pay plaintiffs commission, contending that he and plaintiff orally modified the brokerage agreement to exclude any sale to this ultimate purchaser. No bona fide material questions of fact exist which preclude the grant of summary judgment to plaintiff. The record shows that plaintiff was unaware of any negotiations regarding the sale of the house, that defendant informed plaintiff that the house was rented, and paid plaintiff $4,000 for his efforts. Plaintiff's acceptance of the $4,000 did not estop him from seeking his commission on the sale of the house, as the money was accepted without full knowledge of the material facts which would give rise to an accord and satisfaction. (See, e.g., Consolidated Edison Co. v Jet Asphalt Corp., 132 A.D.2d 296.)
Concur — Carro, J.P., Milonas, Ellerin, Kupferman and Rubin, JJ.