Opinion
January 21, 2010.
Judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered July 14, 2008, in an action to recover a real estate brokerage commission, awarding plaintiff damages pursuant to an order, same court and Justice, entered July 1, 2008, which granted plaintiffs motion for summary judgment, unanimously reversed, on the law, without costs, the judgment vacated and the motion for summary judgment denied.
Before: Gonzalez, P.J., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.
Defendant Wolfson's affidavit raises issues of fact as to, inter alia, whether the e-mail exchanges relied on by plaintiff, which admittedly reflect agreement as to the selling price and commission rate, were intended by the parties to constitute the entire brokerage agreement; whether the parties also agreed, orally, that payment of the agreed-to commission was conditioned on a closing actually taking place; and whether defendants willfully defaulted on their contract of sale with the prospective purchaser or otherwise prevented the closing from taking place ( see Graff v. Billet, 64 NY2d 899).