Cimarron Realty 100 Ltd. v. Horner

—In an action to recover a real estate broker’s commission, defendants appeal from an order of the Supreme Court, Suffolk County (McCarthy, J.), dated July 18, 1984, which denied their motion for summary judgment.

Order reversed, on the law, with costs, motion granted and complaint dismissed.

Plaintiff seeks to recover a brokerage commission under an agreement which provided in pertinent part that "[t]he undersigned owner [defendants] hereby agrees to pay you or the Participating Selling Realtor a commission of 7% of the sales price in the event that the property or any portion thereof is sold or exchanged” (emphasis added). Thus, the agreement specifically provided for the commission to be paid only if the property was sold or exchanged, and not merely if the broker had obtained a prospective buyer. It is undisputed that the defendants never entered into a contract of sale with the prospective buyers produced by the plaintiff. Absent such a contract, the defendants’ mere refusal to enter into one is not a fault or default of the seller such as would entitle the plaintiff to recover a commission (Graff v Billet, 64 NY2d 899). Accordingly, the plaintiff was not entitled to recover a commission as a matter of law, and summary judgment should have been granted in favor of the defendants. Mollen, P. J., Thompson, Brown and Lawrence, JJ., concur.