Opinion
November 7, 1994
Appeal from the Supreme Court, Rockland County (Bergerman, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the defendant-respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment on the counterclaim (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
"It is fundamental that a real estate broker earns its commission when it produces a buyer who is ready, willing and able to purchase the subject property under the terms offered by the seller * * * In the absence of an agreement to the contrary, the broker's right to compensation is not dependent upon the performance of the realty contract" (Blackman DeStefano Real Estate v. Smith, 157 A.D.2d 932, 934; Holzer v. Robbins, 141 A.D.2d 505, 506; see generally, 10 Williston, Contracts § 1287, at 957).
There is no such agreement to the contrary here, and, accordingly, the Supreme Court properly awarded the defendant broker Century 21 A.L.P. summary judgment on its cross claim for a brokerage commission. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.