Opinion
February 7, 1994
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
"It is well settled that absent an agreement to the contrary, a real estate broker earns his commission when he produces a party who is ready, willing and able to purchase or lease on the terms set by the seller lessor" (Holzer v. Robbins, 141 A.D.2d 505, 506). However, a broker and his principal may depart from the general rule and, by agreement, require the performance of an additional event (see, e.g., Bigman Assocs. v. Fox, 133 A.D.2d 93; Williamson, Picket, Gross v. Hirschfeld, 92 A.D.2d 289).
The appellant contends that the respondent is not entitled to a commission because it violated a fiduciary duty by procuring an insolvent, non-viable tenant. However, it was the appellant who negotiated the lease, pursuant to which the tenant took occupancy, which occupancy was the singular additional event required for the brokerage commission to be earned. The subsequent default by the tenant on its obligations shortly after assuming occupancy does not effect the broker's ability to recover a commission pursuant to the brokerage agreement (see, Agency, Broad Cornelia St. v. Lavigne, 97 A.D.2d 934). Bracken, J.P., Pizzuto, Joy and Goldstein, JJ., concur.