Norman Borrow & Co. v. Loft Realty Co.

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered February 19, 1991, which, inter alia, granted plaintiff’s motion for summary judgment, and denied defendant’s cross motion to compel disclosure, unanimously affirmed, with costs. Pursuant to a commission agreement, defendant agreed to pay plaintiff a commission fee based on plaintiff’s procurement of a tenant for defendant’s premises. The commission agreement provided various conditions precedent to defendant’s obligation to pay the fee, all of which had been satisfied and pursuant to which defendant made the first of four scheduled payments. However, defendant later alleged a breach of the lease agreement by the tenant in regard to its use of premises and refused to pay the next two installments on the ground that plaintiff’s salesperson had made various representations with respect to the nature of the tenant’s business upon which defendant relied. The IAS court properly granted summary judgment, since all of the conditions precedent to payment of the fee had been satisfied, as evidenced by defendant’s payment of the first installment, and since the alleged misrepresentations of plaintiff’s salesperson would be barred by the merger clause in the commission agreement. Parol evidence is not admissible to vary the terms of a written contract containing a merger clause (Balzano v Lublin, 162 AD2d 252, 253). Furthermore, defendant has failed to demonstrate any breach of the commission agreement as would release it from its obligation to pay the broker’s fee. Concur—Sullivan, J. P., Milonas, Ellerin, Kassal and Smith, JJ.