Cherveny v. Daniele

In an action to recover a brokerage commission, defendant Anthony Daniele appeals (by permission), as limited by his brief, from so much of an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated January 16, 1976, as affirmed a judgment of the District Court, Suffolk County, Fifth District, entered January 29, 1975, which, after a nonjury trial, was in favor of plaintiff and against him. Order affirmed insofar as appealed from, with costs. Plaintiff and appellant entered into a brokerage agreement concerning the sale of premises known as 83 Loop Drive, Sayville, New York. Plaintiff, a licensed real estate broker, secured a ready, willing and able purchaser, as evidenced by the contract of sale executed by appellant and the purchaser (see Gelardin v Flomarcy Co., 267 App Div 464). Appellant’s reliance upon the letter dated April 8, 1974, which contained the phrase "to be paid only as, if and when title closes”, is misplaced since the failure to close title was the result of an agreement between him and the purchaser. Appellant gave a release to the purchaser upon the latter’s payment to him of $1,600. Martuscello, Acting P. J., Latham, Cohalan, Margett and Shapiro, JJ., concur.