BROWN HARRIS STEVENS RESIDENTIAL SALES LLC v. SAFARI DEVELOPMENT COMPANY LIMITED (2001)

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered September 25, 2000, after a nonjury trial, in an action to recover a real estate broker's commission, in favor of plaintiff and against defendant in the principal amount of $400,000, unanimously affirmed, with costs.

While the record shows that the prospective buyer procured by plaintiff was willing to assist defendant in effecting a like-kind exchange of the subject condominium unit, a clear preponderance of the evidence shows that the proposed sale was not contingent upon defendant's ability to consummate a like-kind exchange.   The original, written brokerage agreement between plaintiff and defendant's predecessor contained no such contingency;  the letter of intent prepared by defendant's attorney and signed by the prospective buyer made no reference to any such contingency;  and the draft like-kind exchange agreement also prepared by defendant's attorney clearly provided that the transaction was to go forward even if a suitable exchange property could not be acquired.   We have considered defendant's other arguments, including that the person procured by plaintiff was not a ready, willing and able buyer, and find them to be without merit.