KAPLON BELO ASSOCIATES INC v. (and a third-party action).

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

KAPLON-BELO ASSOCIATES INC., Respondent, v. Jeffrey CHENG, et al., Appellants, et al., defendant (and a third-party action).

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Thomas E. Berinato, Kew Gardens, N.Y., for appellants. Pliskin, Rubano & Baum, Flushing, N.Y. (Joseph A. Baum and Robert M. Jupiter of counsel), for respondent.

In an action to recover a real estate brokerage commission, the defendants Jeffrey Cheng, Kuang Ming Cheng, and Won Building Corp. appeal from a judgment of the Supreme Court, Queens County (Durante, J.), dated February 26, 1998, as amended March 19, 1998, which, upon an order of the same court dated October 21, 1997, and a nonjury trial on the issue of damages, is in favor of the plaintiff and against them in the principal sum of $62,020.

ORDERED that the judgment as amended is reversed, with costs, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of damages only.

 The appellants entered into an agreement with the plaintiff which provided that the plaintiff had the “sole and exclusive” right to represent the appellants concerning the purchase of the subject premises.   The Supreme Court correctly determined that the appellants breached this agreement when they enlisted the services of another broker, Golden Choice Realty, to purchase the subject premises before the term of the agreement with the plaintiff had expired.   Accordingly, the plaintiff was entitled to recover the commission it would have received had the appellants not breached the agreement (see, Columbia Asset Mgt. Corp. v. Emerson Equities, 75 N.Y.2d 759, 551 N.Y.S.2d 897, 551 N.E.2d 98;  Douglas Real Estate Management Corp. v. Montgomery Ward & Co., 4 N.Y.2d 33, 171 N.Y.S.2d 852, 148 N.E.2d 903;  cf., Interactive Props. v. Doyle Dane Bernbach, 125 A.D.2d 265, 509 N.Y.S.2d 806).

 Since the parties' agreement was silent as to the specific amount of the commission, the plaintiff is entitled to a commission that is fair and reasonable (see, Hotchkiss v. Kuchler, 86 App.Div. 265, 83 N.Y.S. 710;  Bierman v. Barbieri, 124 Misc. 157, 207 N.Y.S. 174).   Usually, this is the customary rate in the community at the time when the services are rendered (see, Ingalls v. Streeter, 67 N.Y.S.2d 351).

The Supreme Court also properly found that the sale of the subject premises was not co-brokered by the plaintiff and the Golden Choice Realty.   Therefore, the plaintiff is entitled to 100% of the customary commission received at the time of the sale.   However, at the trial, the parties failed to establish by competent evidence the customary rate in the community at the time when the property was sold to the appellants.   Therefore, the matter is remitted to the Supreme Court, Queens County, for a new trial to determine the customary rate of commission.

MEMORANDUM BY THE COURT.