Opinion
February 1, 1991
Appeal from the Supreme Court, Erie County, Fuderman, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Balio, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: The record, even when viewed in the light most favorable to plaintiff, reveals that the parties failed to agree upon the amount of a brokerage commission payable to plaintiff. Plaintiff's claim that the parties agreed that he would be paid a commission of $12,500 or 6% of base rents for a 10-year period is no more than an agreement to agree on the amount of commission at some time in the future (see, Cobble Hill Nursing Home v Henry Warren Corp., 74 N.Y.2d 475, cert denied ___ US ___, 112 L Ed 2d 33; Martin Delicatessen v Schumacher, 52 N.Y.2d 105, 109). Accordingly, defendants were entitled to summary judgment dismissing the first cause of action of the complaint seeking recovery based upon breach of an express contract.
The court properly denied summary judgment on the second and third causes of action seeking recovery on the theories of quantum meruit and unjust enrichment (see, Hutner v Greene, 734 F.2d 896, 900). Factual issues were raised whether plaintiff agreed to split commissions with an unlicensed broker or salesperson (see, Real Property Law § 442; Kennedy v Hartford, 31 A.D.2d 616), thereby precluding partial summary judgment on liability.