THOMAS MCCARTHY REAL ESTATE INC v. HERLIN (2026)

DECISION & ORDER

In an action, inter alia, to recover a real estate brokerage commission, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated February 10, 2025.  The order denied the plaintiffs' motion for summary judgment on the complaint and granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In September 2022, the parties entered into an exclusive right to sell agreement.  As relevant to this appeal, the exclusive right to sell agreement provided that the plaintiffs would be entitled to a commission upon producing a buyer who was ready, willing, and able to purchase the subject property.  The plaintiffs thereafter engaged with two purchasers for the property, and in August 2023, the purchasers entered into a residential contract of sale with the defendant.  It is undisputed that closing did not occur on the date set in the residential contract of sale.  In November 2023, the plaintiffs sent two letters to the defendant demanding payment of the commission.

In January 2024, the plaintiffs commenced this action against the defendant, inter alia, to recover the commission.  The plaintiffs thereafter moved for summary judgment on the complaint.  The defendant opposed the plaintiffs' motion and moved for summary judgment dismissing the complaint.  In an order dated February 10, 2025, the Supreme Court denied the plaintiffs' motion and granted the defendant's motion.  The plaintiffs appeal.

“ ‘To prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale’ ” (Saunders Ventures, Inc. v Catcove Group, Inc., 151 AD3d 991, 994, quoting Douglas Elliman, LLC v Silver, 136 AD3d 658, 659;  see All Is. Estates Realty Corp. v Singh, 219 AD3d 1392, 1392).  “ ‘Although as a general rule a real estate broker will be deemed to have earned a commission when the broker produces a purchaser who is ready, willing, and able to purchase the property on terms acceptable to the seller, the broker's right to a commission may be varied by agreement’ ” (Saunders Ventures, Inc. v Catcove Group, Inc., 151 AD3d at 994, quoting Pantigo Realty v Estate of Schrenko, 249 AD3d 525, 525;  see Pinnacle Realty of N.Y., LLC v 255 Butler, LLC, 125 AD3d 952, 953).

Here, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the complaint.  The evidence submitted by the plaintiffs failed to demonstrate that, pursuant to the exclusive right to sell agreement, they produced a buyer who was ready, willing, and able to purchase the property (see GLND 1945, LLC v Ballard, 172 AD3d 1330, 1331;  MB Shtetl 1 Corp. v Singh, 166 AD3d 604, 605).  Since the parties' submissions demonstrated that the purchasers were not ready, willing, and able to purchase the property, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint (see Pinnacle Realty of N.Y., LLC v 255 Butler, LLC, 125 AD3d at 953;  Kaplon–Belo Assoc., Inc. v D'Angelo, 79 AD3d 930, 931).

Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the complaint and granted the defendant's motion for summary judgment dismissing the complaint.

CONNOLLY, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.