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Kennedy v. Wolfson

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 21, 2010

COLDWELL BANKER HUNT KENNEDY, PLAINTIFF-RESPONDENT,
v.
HOWARD L. WOLFSON, ET AL., DEFENDANTS-APPELLANTS.

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 plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the judgment vacated and the motion for summary judgment denied.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Sweeny, Catterson, Abdus-Salaam, JJ.

112601/07

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 [1985]).

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

20100121

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