Gross v. Valenti

—Judgment unanimously affirmed without costs. Memorandum: Plaintiff, a commercial real estate broker, commenced this action to recover commissions allegedly due from defendants, the purchasers of Kings Park Apartments, a multi-unit apartment complex located in Liverpool. On this appeal, plaintiff does not claim that she was the procuring cause of the purchase of the Kings Park Apartments but, instead, argues that defendants deprived her of the opportunity to earn her commission by terminating the parties’ agreement in bad faith (see, Columbia Asset Mgt. Corp. v Emerson Equities, 75 NY2d 759, 760-761). Supreme Court granted defendants’ CPLR 4401 motion for judgment during trial at the close of plaintiff’s proof. We affirm.

In October 1978, defendants Carmen and David J. Valenti signed an agreement with plaintiff stating in its entirety: "It is agreed between Carmen Valenti and Sally Gross that the owners of Kings Park under no circumstances are to be contacted except through Gross Real Estate.” The written agreement was silent regarding commissions. Plaintiff testified that the parties orally agreed in November 1978 that she *972would be entitled to a 10% commission. It is uncontested that defendants terminated their relationship with plaintiff in April 1979, and that the Kings Park Apartments were not purchased until March 1980. The most that plaintiff’s proof demonstrated was that plaintiff provided financial information and showed the Kings Park Apartments to defendants in October 1978, and again provided financial information to defendants in September 1979.

Even assuming that there had been a valid brokerage agreement, defendants and the sellers of the Kings Park Apartments were not "in the midst of negotiations instituted by [plaintiff] * * * which were plainly and evidently approaching success” when plaintiff’s agency was terminated (Sibbald v Bethlehem Iron Co., 83 NY 378, 385). Thus, it is unnecessary to reach the issue of defendants’ bad faith. (Appeal from Judgment of Supreme Court, Onondaga County, Elliott, J.— Breach of Contract.) Present — Green, J. P., Pine, Callahan, Doerr and Boehm, JJ.