Hared Realty Corp. v. Esikoff

—In an action to recover a real estate brokerage commission, the defendant appeals from an order of the Supreme Court, Queens County (Graci, J.), dated May 1, 1987, which denied his motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. Absent a written brokerage agreement between the plaintiffs, as broker, and the defendant, as seller, the rule of Graff v Billet (64 NY2d 899) is inapplicable (see, Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828, 830-831). The trial court correctly determined that there were triable issues of fact, inter alia, regarding the terms of the oral agreement between the plaintiffs and the defendant; whether the plaintiffs produced a buyer ready, willing and able to purchase on the seller’s terms; and whether the defendant’s failure to close the deal was wrongful, arbitrary or in bad faith (see, Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 44; Penzotti v Broda Mach. Co., 37 AD2d 340, 342; Kahn Assocs. v Maidman, 69 Misc 2d 90, 93, affd 38 AD2d 798, affd 30 NY2d 831). The subsequent letters from the broker to the seller presented further triable issues as to whether the broker and seller intended to make the commission contingent upon closing or 731 whether they agreed that the commission was already earned but that payment was deferred until the time of closing (see, Feinberg Bros. Agency v Berted Realty Co., supra, at 831). Thompson, J. P., Kunzeman, Eiber and Sullivan, JJ., concur.