From Casetext: Smarter Legal Research

Helmsley-Spear v. Kupferschmid

Appellate Division of the Supreme Court of New York, First Department
Jan 21, 2003
301 A.D.2d 442 (N.Y. App. Div. 2003)

Opinion

27

January 21, 2003.

Order, Supreme Court, New York County (Helen Freedman, J.), entered March 21, 2001, which, inter alia, granted the motion of defendant Lawrence Kupferschmid for summary judgment dismissing the complaint as against him in this action for a brokerage commission, unanimously affirmed, with costs.

Kenneth P. Horowitz, for plaintiff-appellant.

Robert J. Berman, for defendant-respondent.

Tom, J.P., Buckley, Rosenberger, Friedman, Marlow, JJ.


Since the sale of the subject property and plaintiff broker's entitlement to a commission thereon were contingent upon the satisfaction of a condition which went unsatisfied through no fault of defendant Lawrence Kupferschmid, summary judgment dismissing the complaint against Lawrence Kupferschmid was proper (compare Carnegie v. Abrams, 37 A.D.2d 327 and Heelan Realty Dev. Corp. v. Skyview Meadows Dev. Corp., 204 A.D.2d 601). We note that dismissal of the complaint as against defendant-respondent was additionally warranted since plaintiff failed to produce a buyer ready and willing to purchase the property on terms acceptable to defendant-respondent (see Lane — Real Estate Dept. Store v. Lawlet Corp., 28 N.Y.2d 36, 42). The "marked-up" contract returned to defendant-respondent by the lawyer for the buyer constituted a counter-offer (see Tencza v. Hyland, 171 A.D.2d 1057, lv denied 78 N.Y.2d 859) which defendant-respondent did not, and was not in good faith obliged to, accept.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Helmsley-Spear v. Kupferschmid

Appellate Division of the Supreme Court of New York, First Department
Jan 21, 2003
301 A.D.2d 442 (N.Y. App. Div. 2003)
Case details for

Helmsley-Spear v. Kupferschmid

Case Details

Full title:HELMSLEY-SPEAR, INC., Plaintiff-Appellant, v. LAWRENCE KUPFERSCHMID…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 21, 2003

Citations

301 A.D.2d 442 (N.Y. App. Div. 2003)
752 N.Y.S.2d 884

Citing Cases

Holland v. Ryan

The condition that plaintiff relocate a flowering tree to defendants' property was not a condition precedent…

Eastern Consol. v. Morrie Golick Living Trust

The deal memorandum entered into by the parties, which expressly stated, "This memo shall memorialize the…