LIGGETT REALTORS INC v. GRESHAM (2007)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 30, 2005, which denied plaintiffs' motion for summary judgment and granted defendant's cross motion to dismiss the complaint, unanimously affirmed, with costs.

 Although a real estate broker is generally entitled to a commission when it produces a buyer who is ready, willing and able to purchase on the seller's terms, “the broker's right to a commission may be varied by agreement” (Pantigo Realty v. Estate of Schrenko, 249 A.D.2d 525, 672 N.Y.S.2d 369 [1998] ).   Here, the brokerage agreement unambiguously provided for payment of the commission “[a]t the closing of sale of the apartment, provided you have provided a qualified buyer and the deal consummates.”   The obligation to pay a broker's commission upon consummation of sale requires a formal act of closing (see Yoo [N.Y.] Corp. v. Tauber & Assoc., 281 A.D.2d 171, 722 N.Y.S.2d 5 [2001] ).   Absent any specific commitment by the seller to enter into the sales contract, which the buyer's counsel had conditioned, among other things, on execution within 24 hours, plaintiffs are not entitled to a brokerage commission (see Graff v. Billet, 64 N.Y.2d 899, 487 N.Y.S.2d 733, 477 N.E.2d 212 [1985], affg. 101 A.D.2d 355, 475 N.Y.S.2d 122 [1984];  Corcoran Group v. Morris, 107 A.D.2d 622, 484 N.Y.S.2d 7 [1985], affd. 64 N.Y.2d 1034, 489 N.Y.S.2d 66, 478 N.E.2d 207 [1985] ).   The documentary evidence establishes that the conditions precedent to plaintiffs earning the commission were not fulfilled because the deal was never consummated (see Battery Park Realty, Inc. v. RKO Del., Inc., 18 A.D.3d 680, 795 N.Y.S.2d 351 [2005];  Hayes & Assoc. v. Island Jeep Eagle, 266 A.D.2d 386, 698 N.Y.S.2d 161 [1999] ).