NEW SPECTRUM REALTY SERVICES INC v. WEISER (2000)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered May 26, 1999, which granted plaintiff's motion for summary judgment and awarded plaintiff $85,000 plus interest, unanimously reversed, on the law, without costs, and the motion denied.

 In this action for a brokerage commission, the IAS court improperly awarded summary judgment to plaintiff.   A broker is only entitled to his commission when he produces a buyer who is ready, willing and able to purchase the premises on the terms set forth by the seller (Cushman & Wakefield v. 214 East 49th Street Corp., 218 A.D.2d 464, 639 N.Y.S.2d 1012 appeal dismissed 88 N.Y.2d 951, 647 N.Y.S.2d 708, 670 N.E.2d 1339).   The contract offered by the proposed purchaser contained terms which deviated from defendant's offer of sale, specifically:  that three floors of the building had to be vacant (instead of the ground floor and basement);  that the third-floor tenant had to relinquish certain existing lease rights;  and, that defendant would be obligated to pay a portion of any asbestos removal.   None of these terms were contained in defendant's offer.   There exist unresolved issues of fact, including whether, as plaintiff contends, it was defendant's unilateral efforts which defeated the sale.

MEMORANDUM DECISION.