Breslin Realty Development Corp. v. 112 Leaseholds, L. L. C.

—In an action, inter alia, to recover a brokerage commission, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 17, 1999, as denied those branches of its motion which were for summary judgment dismissing the second and third causes of action to recover damages for breach of contract and to recover based on quantum meruit, respectively. Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that there are triable issues of fact as to whether there was a brokerage agreement between the parties and, if so, what the material terms of that agreement were, including when a commission became due. Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract (see, Patrolmen’s Benevolent Assn. v City of New York, 27 NY2d 410; cf., Dwelling Quest Corp. v Greater N. Y. Sav. Bank, 246 AD2d 431). Inasmuch as there is a bona fide dispute as to the existence of a contract, the plaintiff may proceed on theories of breach of contract and quantum meruit (see, Curtis Props. Corp. v Greif Cos., 236 AD2d 237; Joseph Sternberg, Inc. v Walber 36th St. Assocs., 187 AD2d 225). Bracken, J. P., McGinity, Luciano and Feuerstein, JJ., concur.