Opinion
2009-456 K C.
Decided March 8, 2010.
Appeal from a decision of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), dated August 22, 2008, deemed from a judgment of the same court entered September 12, 2008 (see CPLR 5520 [c]). The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $10,500 as against defendant Marcus Lee.
ORDERED that the judgment, insofar as appealed from, is reversed without costs and judgment is directed to be entered dismissing the complaint as against defendant Marcus Lee.
PRESENT: RIOS, J.P., PESCE and STEINHARDT, JJ.
Plaintiff commenced this action to recover a real estate commission allegedly due him. The evidence adduced at the nonjury trial established that defendant Marcus Lee was the purchaser of premises owned by defendant Joseph Paino. The Civil Court found that plaintiff had produced a buyer, Marcus Lee, who was ready, willing and able to purchase the premises and awarded plaintiff judgment in the sum of $10,500 against all of the named defendants in this action. This appeal by defendant Marcus Lee ensued.
Where a seller employs a real estate broker, the performance of such brokerage service triggers the seller's obligation to pay a commission ( see Kalmon Dolgin Affiliates v Estate of Nutman, 172 AD2d 917). The contract of sale in the case at bar expressly provided that the real estate brokerage commission was to be paid by the seller. In the absence of a special agreement or exceptional circumstances, a broker employed by a seller cannot hold the purchaser liable for the commission ( see Sutton Edwards v Samuels, 187 AD2d 501; Goodman v Kirkeby, 282 App Div 86). The evidence adduced at trial failed to establish that plaintiff had a special agreement with defendant Lee or that there were exceptional circumstances which would warrant holding Lee liable for any commission that plaintiff may have earned.
Accordingly, the judgment, insofar as appealed from, is reversed and judgment is directed to be entered dismissing the complaint as against defendant Marcus Lee.
Rios, J.P., Pesce and Steinhardt, JJ., concur.