Opinion
September 24, 1992
Appeal from the Supreme Court, Clinton County (Plumadore, J.).
In the absence of an agreement to the contrary, a real estate broker's right to its commission is not dependent upon performance of the real estate contract; rather, the broker is entitled to compensation when it produces a buyer who is ready, willing and able to purchase the property under the seller's terms (Stolen v Bruaz Realty Corp., 173 A.D.2d 927). Here, the uncontradicted evidence shows that plaintiff produced such a buyer and the real estate contract states that plaintiff brought about the sale and that defendants agreed to pay the commission. In our view, the language in the separate brokerage agreement that the parties "agreed to a commission of 4% for the sale" of the subject property did not mean that plaintiff would be paid only upon passage of title at a closing (see, Reynolds Realty v Wilczewski, 160 A.D.2d 787, lv dismissed 76 N.Y.2d 889). Defendant Warren Chase's assertions that under the brokerage agreement the commission would be earned only when title passed and that that agreement pertained only to a previous purchase and sale contract are without evidentiary support, and his allegations concerning plaintiff's conduct were insufficient to defeat the motion for summary judgment (see, Joan Dorothy Realty Corp. v Brookville Props., 173 A.D.2d 783; Ladd v Coldwell Banker: Racette Assocs., 167 A.D.2d 676; cf., Garnham Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493).
Finally, the failure of defendants' intended measures to reduce or release liens against the property did not constitute a known title defect such as would have relieved defendants of the obligation to pay a commission to plaintiff upon the failure of the transaction (see, Stern v Gepo Realty Corp., 289 N.Y. 274; 11 N Y Jur 2d, Brokers, § 126). Thus, as Supreme Court noted, the fact that a closing never took place was "irrelevant" and plaintiff was entitled to its brokerage commission.
Weiss, P.J., Mikoll, Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the judgment is affirmed, with costs.