GUMLEY HAFT KLEIER INC v. BILDIRICI (2003)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered July 18, 2001, which, inter alia, denied plaintiff's motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint, unanimously affirmed, without costs.

The parties' brokerage agreement provided, in relevant part, that a commission “shall be payable at closing of title” but that defendant seller would be liable for plaintiff broker's commission, even if the transaction did not close, if the failure to close was attributable to defendant's willful default.   The evidence on the motion established that although defendant signed the underlying contract for the sale of his apartment, the transaction did not close because the buyer stopped payment of his deposit check and refused to proceed to closing.   Accordingly, inasmuch as the failure to close was not the consequence of any willful default on defendant's part, no commission was due under the subject brokerage agreement and the award of summary judgment dismissing the complaint was proper (see Graff v. Billet, 64 N.Y.2d 899, 487 N.Y.S.2d 733, 477 N.E.2d 212).