BATTERY PARK REALTY INC v. RKO DELAWARE INC

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Supreme Court, Appellate Division, Second Department, New York.

BATTERY PARK REALTY, INC., et al., appellants, v. RKO DELAWARE, INC., et al., respondents, et al., defendants.

Decided: May 23, 2005

ANITA R. FLORIO, J.P., SONDRA MILLER, FRED T. SANTUCCI, and ROBERT A. SPOLZINO, JJ. Dollinger, Gonski & Grossman, Carle Place, N.Y. (Michael J. Spithogiannis of counsel), for appellants. Wasserman Grubin & Rogers, LLP, New York, N.Y. (Douglas J. Lutz of counsel), for respondents.

In an action, inter alia, to recover a real estate brokerage commission, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated December 4, 2003, which granted the motion of the defendants RKO Delaware, Inc., and Thomas Huang to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

 Although it is generally the case that a real estate broker will be entitled to a commission when the broker produces a purchaser who is ready, willing, and able to purchase on the seller's term, “the broker's right to a commission may be varied by agreement” (Pantigo Realty v. Estate of Schrenko, 249 A.D.2d 525, 525, 672 N.Y.S.2d 369;  Cook/Pony Farm Real Estate v. Spartan Enters., 157 A.D.2d 766, 550 N.Y.S.2d 372;  Lane-Real Estate Dept. Store v. Muchnick, 145 A.D.2d 469, 535 N.Y.S.2d 105;  LaRosa Realty v. Kim, 123 A.D.2d 839, 840, 507 N.Y.S.2d 454).   Here, the brokerage agreement provided that the plaintiffs, real estate brokers, were entitled to a commission if the defendant Thomas Huang sold the subject real property to the defendant Lester Dworman or if Huang developed the property with Dworman, developed the property himself, or developed the property with any other entities introduced by the plaintiff Margaret Liu.   It is undisputed that none of these events transpired.   Accordingly, the motion of Huang and the defendant RKO Delaware, Inc. (hereinafter the respondents), to dismiss the cause of action to recover a real estate brokerage commission under the brokerage agreement insofar as asserted against them was properly granted.

 Further, the second cause of action sounding in quantum meruit was properly dismissed insofar as asserted against the respondents.   A valid and enforceable contract governed the relationship between the parties with respect to the subject matter for which the plaintiffs sought to recover (see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190;  Cooper, Bamundo, Hecht & Longworth, LLP v. Kuczinski, 14 A.D.3d 644, 789 N.Y.S.2d 508;  Mucerino v. Firetector, Inc., 306 A.D.2d 330, 332, 761 N.Y.S.2d 269).

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