In an action to recover a real estate brokerage commission, the defendant appeals from a judgment of the Supreme Court, Nassau County (Collins, J.), entered April 12, 1994, upon an order dated March 2, 1994, granting the plaintiff’s motion for summary judgment, which is in favor of the plaintiff and against him in the principal sum of $32,500.
Ordered that the judgment is reversed, on the law, with costs, the order dated March 2, 1994, is vacated, and the plaintiff’s motion for summary judgment is denied.
In May 1992 the defendant Robert Haggerty engaged the services of the plaintiff Agawam Realty, Ltd. (hereinafter Agawam), a real estate broker, in an effort to procure a purchaser for his home located in Southampton, New York. Later the same month, Linda Hangen, a principal of Agawam, showed the premises to Denis and Jeannene Chaudruc. The Chaudrucs subsequently had the premises inspected by an engineer, by LILCO, a heating man, and a plumber. On June 24, 1992, Hangen orally extended to Haggerty an $825,000 offer from the Chaudrucs. According to Hangen, Haggerty accepted the Chaudrucs’ offer. On the same date, Hangen faxed a Purchase Memorandum to Haggerty. This Purchase Memorandum, inter alia: (1) identified the premises, (2) identified the
[519] parties, their attorneys, and the broker, (3) recited the purchase price of $825,000, (4) specified that no binder was received, (5) specified that the purchase price was subject to a $32,500 brokerage fee, (6) specified a 10% down payment upon the signing of the contract, (7) recited a mortgage contingency of $600,000 at the prevailing rate to be obtained within 45 days of signing of the contract, and (8) stated "closing: September 1992”.
After receiving the Purchase Memorandum, Haggerty contacted his attorney and instructed her to prepare a contract, based upon the terms of the memo, and send it to the Chaudrucs. The resultant six page Contract of Sale was received by the Chaudrucs’ attorneys on July 1, 1992, just prior to the Fourth of July weekend. Meanwhile, by June 29, 1992, the Chaudrucs were advised by the bank to which they had applied that they would be approved for a mortgage.
On or about July 7, 1992, Haggerty was informed that another purchaser, produced by a different real estate broker, wanted to purchase the premises for $853,000, i.e., $28,000 more than the Chaudrucs had offered.
According to Hangen, on July 8, 1992, Haggerty called her and asked if Mr. Chaudruc was "serious”. Hangen replied, "of course he is,” and Haggerty said "Okay, I’m just checking”. However, according to Haggerty, July 8, 1992, "was the time that [he] concluded that the Chaudrucs were an iffy proposition”. When asked what brought him to that conclusion, Haggerty replied: "Because I had told [Hangen] that I had another — that I was entertaining another offer and I thought that should have lit a fire under them * * * But when we called [the Chaudrucs’ attorney] * * * we were told well, we’ll get around to this contract sometime next week, and I said this is untenable”.
On July 9, 1992, Haggerty informed Hangen that he was selling the premises to the second purchaser. On the same date, Haggerty instructed his attorney to ask for the return of the subject contract.
On July 10, Mr. Chaudruc informed Haggerty that he [Chaudruc] wished to proceed with the sale and was sending a $10,000 binder. Haggerty acknowledged that Mr. Chaudruc had offered the $10,000 binder. However, Haggerty rejected it because in his words, "I thought that was just confirmation of the fact that, at best, he was a reluctant suitor”. Significantly, Haggerty explained that if Mr. Chaudruc had wired the 10% down payment specified in the contract of sale, the parties’ deal would have gone forward.
[520] On July 12, Haggerty and the new purchaser executed a purchase contract.
In a decision and order dated March 2, 1994, Justice Collins granted the plaintiff’s motion for summary judgment. The court rejected Haggerty’s various arguments, finding that: "There is no question of fact that pursuant to an oral agreement with [Haggerty], [the] plaintiff broker obtained a buyer ready, willing and able to purchase the defendant’s property at the price and on the terms agreed to by [Haggerty]”, and that "the only reason title did not close herein after defendant prepared a contract and sent it to the buyer’s attorney is the fact that defendant saw an opportunity to obtain more money for his property”. We reverse.
It is axiomatic that to recover real estate brokerage fees, stemming from an unclosed transaction, the plaintiff "must establish that he or she has procured a prospect who has reached agreement with the seller on essential terms and is ready, willing and able to perform” (Wykagyl Agency v Rothschild, 100 AD2d 934, 935). In this case, given the Chaudrucs’ delay in entering into the subject contract of sale and tendering the requisite 10% down payment, we find that there exist material issues of fact regarding whether Agawam Realty actually procured a buyer who was ready, willing, and able to perform according to the dictates of the Purchase Memorandum, prepared by its broker, and the ensuing proposed sales contract. To this end, the dispositive issue will be whether the Chaudrucs were provided a reasonable amount of time to sign the subject contract and tender the down payment. Pizzuto, Hart and Goldstein, JJ., concur.
Bracken, J. P.,
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