Caltabianov.State Bank of Long Island

Appellate Division of the Supreme Court of New York, Second DepartmentOct 24, 1977
59 A.D.2d 752 (N.Y. App. Div. 1977)

October 24, 1977


In a action, inter alia, to recover real estate brokerage commissions, (1) defendant appeals from so much of an order of the Supreme Court, Nassau County, dated November 12, 1976, as (a) denied its motion for summary judgment and (b) granted the branch of plaintiff's cross motion which sought leave to amend the title of the action and the complaint and (2) plaintiff cross-appeals from the balance of the order, which denied the branch of his cross motion which sought to disqualify defendant's attorneys. Order reversed, on the law, with $50 costs and disbursements payable to defendant, motion for summary judgment granted and complaint dismissed. On July 18, 1972 plaintiff, a member of defendant's advisory board of directors, and that board's other members, were advised that the board of directors had authorized sale of the subject premises for $125,000 net to defendant. Plaintiff advised the other members that he believed he had a prospective purchaser, and, as a real estate broker, would produce a buyer, without a commission being payable to him by defendant. He did so, but defendant refused to sell to plaintiff's purchaser and instead sold the premises to a third party. Thereafter plaintiff brought this action to recover the amount of the real estate commissions be would have earned had defendant agreed to the offer. We find, as a matter of law, that defendant did not expressly or impliedly employ plaintiff as a broker or agree to pay him a commission (see Ditmars v Renz, 269 N.Y. 191; Grossman v Herman, 266 N.Y. 249; Balducci v National Union Elec. Corp., 46 A.D.2d 834; 6 N.Y. Jur, Brokers, §§ 84, 85). Accordingly, the complaint should have been dismissed. In view of this disposition, the cross appeal is rendered academic. Cohalan, J.P., Titone, Hawkins and Mollen, JJ., concur.