DuBois v. McDade

Yesawich, Jr., J. Appeals (1) from an order of the Supreme Court (Harlem, J.), entered May 2, 1990 in Otsego County, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, and (2) from the judgment entered thereon. A prospective buyer contacted an agent of plaintiff, a real estate broker, and offered to purchase the double storefront buildings defendants had listed with plaintiff for $100,000, even though the prospective purchaser apparently had never been inside either building. When the realty agent explained that a 10% down payment would be expected, the purchaser inquired whether, instead, she could make a 5% down payment consisting of a $500 deposit when the offer was signed and $4,500 approximately two weeks later. The realty agent notified defendants of this proposal and the latter agreed. Plaintiff prepared a purchase offer reflecting the $100,000 purchase price and split deposit arrangement. The purchaser paid the initial $500, albeit after the offer was signed, but never paid the additional $4,500 nor closed on the property. In this action to recover an $8,000 commission, plaintiff maintains that defendants’ acceptance of the purchase offer obligated them to pay. After discovery, both parties moved for summary judgment. Supreme Court granted defendants’ motion and dismissed the complaint. While plaintiff has demonstrated that he produced a buyer, there is considerable doubt as to whether the buyer was ready, willing and able to purchase the subject property in accordance with the terms set by defendants (see, Blackman DeStefano Real Estate v Smith, 157 AD2d 932, 934). Unless the parties have agreed otherwise, a broker must establish that the prospective buyer has the financial capability to purchase the property before he will be deemed to have earned his commission (Rusciano Realty Servs. v Griffler, 62 NY2d 696, 697-698; Trenga Realty v Wedgewood Homes, 138 AD2d 875, 876; Blackmore v Wigne Land Corp., 97 AD2d 889). The record discloses that the purchaser’s financial ability to pay the purchase price was questionable from the very outset, a circumstance apparently never communicated to defendants. Excerpts from the deposition of plaintiff’s agent reveal that [1093] the purchaser indicated in the initial contact she had with the agent that she would have difficulty meeting the usual 10% down payment requirement. For this reason, the realty agent undertook to secure defendants’ permission not only to halve the customary down payment, but also to have the reduced amount paid in two installments, the first of which, a $500 payment, was due when the purchase offer was signed. Not only was this payment made late, but it is not clear whether plaintiff ever informed defendants to that effect. And despite giving repeated but vague assurances to plaintiff’s agent that the second installment would be forthcoming shortly, the buyer never forwarded the $4,500. Whether this buyer was in fact ready and financially able to purchase defendants’ property presents a triable question of fact precluding summary judgment (cf., Blackmore v Wigne Land Corp., supra; compare, Agency, Broad & Cornelia St. v Lavigne, 97 AD2d 934, 934-935, lv dismissed 61 NY2d 605, 904). In passing, we note that the terms of the purchase offer are not ambiguous and, further, contrary to defendants’ view, that there is no suggestion in the purchase offer that the buyer’s obligation to pay the entire 5% down payment was a condition precedent which, because it went unfulfilled, voided the contract (see, 22 NY Jur 2d, Contracts, § 234, at 82). Order and judgment modified, on the law, without costs, by reversing so much thereof as granted defendants’ motion for summary judgment dismissing the complaint; said motion denied; and, as so modified, affirmed. Mikoll, Yesawich, Jr., Mercure and Crew III, JJ., concur.