Opinion
October 2, 1995
Appeal from the Supreme Court, Suffolk County (Oshrin, J.).
Ordered that the judgment is reversed, on the law and the facts, with costs, and the complaint is dismissed.
The weight of the evidence establishes that on or about August 20, 1987, the defendant Thomas Conklin went to the plaintiff's office, met with the plaintiff's principal, Marcel Damiecki, and listed certain property as being for sale, specifying an asking price of $750,000. The evidence also establishes that more than one year later, in October 1988, Mr. Damiecki viewed the subject property together with the codefendant Francesco Galesi, a potential buyer, who was at that time willing to pay $500,000, an offer which was not acceptable to Mr. Conklin. More than one year after that, in March 1990, Mr. Conklin conveyed the property to Mr. Galesi pursuant to a contract which specified a purchase price of $625,000. The Supreme Court, after a nonjury trial, awarded the plaintiff $62,500, concluding that the plaintiff was entitled to a broker's commission of 10%. For the following reasons, we reverse.
Unlike the Supreme Court, we find that the weight of the evidence establishes not only that Mr. Conklin and Mr. Galesi lived near to and knew one another prior to Mr. Damiecki's showing of the property in 1988, but also that they themselves had already discussed the availability of the property for sale, without any prompting from Mr. Damiecki. We also find that, aside from this single visit to the property, Mr. Damiecki did nothing of any significance to assist in the negotiations between Mr. Galesi and Mr. Conklin. We agree with the appellants that, under all the circumstances presented, the plaintiff cannot be considered the procuring cause of the later sale (see generally, Greene v. Hellman, 51 N.Y.2d 197; Sibbald v. Bethlehem Iron Co., 83 N.Y. 378; Mollyann, Inc. v. Demetriades, 206 A.D.2d 415; Helmsley-Spear, Inc. v. Melville Corp., 203 A.D.2d 517; Levy Wolf Real Estate Brokerage v. Lizza Indus., 118 A.D.2d 688).
The Supreme Court found that there was a "special agreement" of the kind that would relieve the plaintiff of the need to demonstrate that it was a "procuring cause" in order to be entitled to a commission (Greene v. Hellman, supra). We do not agree that, under the facts of this case, Mr. Conklin's alleged oral promise to "protect" the plaintiff's commission created or preserved a right to a commission which would otherwise not have existed (see, Helmsley-Spear, Inc. v. Melville Corp., supra; Lanstar Intl. Realty v. New York News, 206 A.D.2d 411).
We also note that the evidence establishes, at most, that Mr. Conklin agreed to pay a 10% commission solely in the event of a conveyance of the property in return for the payment of $750,000 or more. The plaintiff's own evidence establishes that the parties reached no agreement as to the amount of the commission in the event of a sale for less than $750,000, and that the parties instead left this open for future negotiation. The Supreme Court had before it no evidentiary basis upon which to assume that the parties would have negotiated a 10% commission on the sale of the property for $625,000 (see, Martin Delicatessen v. Schumacher, 52 N.Y.2d 105; Cooper Sq. Realty v. A.R.S. Mgt., 181 A.D.2d 551).
Finally, it is noteworthy that the August 1987 brokerage agreement between Mr. Conklin and the plaintiff contained no term as to its duration. A reasonable duration must therefore be implied (see, 11 N.Y. Jur 2d, Brokers, § 20; Donovan v. Weed, 182 N.Y. 43). Under the circumstances of this case, it would not be reasonable to extend the duration of the agreement for a term of more than one year, and we conclude that Mr. Conklin would have had the right, acting in good faith, to terminate the brokerage agreement at any time thereafter (see, Gross v. Valenti, 202 A.D.2d 971; Yaras v. Levison Bros. Realty Corp., 33 A.D.2d 831). Mangano, P.J., Bracken, Balletta and Hart, JJ., concur.