Eileen A. Green Realty Corp. v. Polidori

—In an action to recover a real estate broker’s commission, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lama, J.), dated December 20, 1994, which denied its motion for summary judgment. Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the plaintiffs motion which was for summary judgment on the issue of liability, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the issue of the amount of the plaintiff’s commission. It is undisputed that the plaintiff broker procured the defendant, who was ready, willing, and able to purchase the subject real property, and that the contract of sale identified the plaintiff as the sole broker and required the defendant to pay a broker’s commission not to exceed 5% of the purchase price. Indeed, the defendant concedes liability for the commission but disputes the amount thereof. Although the plaintiff claims that the defendant agreed orally to pay 5% of the purchase price and has produced various documentation (including a brokerage agreement which was not signed by the defendant) indicating the plaintiff’s belief that such an agreement existed, the defendant denies agreeing to pay 5% and claims that the amount of the commission was never agreed upon. The Supreme Court correctly concluded that an issue of fact exists regarding the amount of the commission. Nevertheless, based on the defendant’s concessions, the plaintiff is entitled to summary judgment on the issue of liability, and we remit the matter to the Supreme Court for a hearing limited to determining the amount of the commission to which the plaintiff is entitled (see, Henri-Lynn Realty v Huang, 159 AD2d 486). Mangano, P. J., Copertino, Joy and Altman, JJ., concur.