Salamon, Gruber, Blaymore & Strenger, P.C., Roslyn
Heights, NY (Sanford Strenger and Elizabeth Tobio of
counsel), for appellants.
Vishnick McGovern Milizio LLP, Lake Success, NY (Avrohom
Gefen of counsel), for respondent.
C. DILLON, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action, inter alia, to recover a real estate broker's
commission, the defendants Delwar Hussain and Delco
Properties, LLC, appeal from an order of the Supreme Court,
Queens County (D. Hart, J.), entered February 3, 2016, which
denied their motion pursuant to CPLR 3211(a)(1) and (7) to
dismiss the cause of action to recover a real estate
that the order is affirmed, with costs.
5, 2013, the plaintiff (hereinafter the broker) entered into
a commission agreement with the defendants Delwar Hussain and
Delco Properties, LLC (hereinafter together the sellers), to
sell premises located in Jackson Heights, Queens. The
commission agreement provided that a $320, 000 commission was
due and payable to the broker "upon consumption [sic] of
the transaction at closing."
than three weeks later, on June 20, 2013, the sellers entered
into a contract of sale for the premises, which identified
the broker as the sole broker for the sale. The agreed-upon
closing date was December 30, 2013. However, by early 2015,
there had been no closing.
March 5, 2015, the broker was advised by the sellers'
attorney that the sale would likely be cancelled pursuant to
an agreement between the sellers and the original buyer. The
broker alleges that the reason for the cancellation was that
the sellers found new buyers willing to pay a higher purchase
price for the premises.
settlement agreement dated March 10, 2015, the sellers and
the original buyer agreed to cancel the contract and that the
sellers would pay a $2 million cancellation fee to the
original buyer. Thereafter, the broker demanded payment of
its commission, but the sellers refused to pay.
broker commenced this action, inter alia, to recover a real
estate broker's commission pursuant to the commission
agreement. The sellers moved pursuant to CPLR 3211(a)(1) and
(7) to dismiss the cause of action to recover a real estate
broker's commission. In support of the motion, they
submitted the commission agreement, the contract of sale, and
the settlement agreement cancelling the contract of sale. The
Supreme Court denied the motion. The sellers appeal.
motion to dismiss a complaint pursuant to CPLR 3211(a)(7),
the court must "accept the facts as alleged in the
complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the
facts as alleged fit within any cognizable legal theory"
(Leon v Martinez, 84 N.Y.2d 83, 87-88). While a
court is "permitted to consider evidentiary material
submitted by a defendant in support of a motion to dismiss
pursuant to CPLR 3211(a)(7)" (Sokol v Leader,
74 A.D.3d 1180, 1181), "where the motion is not
converted to one for summary judgment, the criterion is
whether the [plaintiff] has a cause of action, not whether
[it] has stated one, and, unless it has been shown that a
material fact as claimed by the [plaintiff] to be one is not
a fact at all and unless it can be said that no significant
dispute exists regarding it... dismissal should not
eventuate'" (Weill v East Sunset Park Realty,
LLC, 101 A.D.3d 859, 859-860, quoting Guggenheimer v
Ginzburg, 43 N.Y.2d 268, 275). A motion to dismiss
pursuant to CPLR 3211(a)(1) may appropriately be granted
"only where the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively
establishing a defense as a matter of law" (Goshen v
Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;
see Siracusa v Sager, 105 A.D.3d 937, 938).
the parties have agreed otherwise, a real estate broker will
be deemed to have earned his commission when he produces a
purchaser who is not only ready and willing to purchase at
the terms set by the seller, but able to do so as well"
(Rusciano Realty Servs. v Griffler, 62 N.Y.2d 696,
697; see Island Assoc. Real Estate, Inc. v Doukas,
130 A.D.3d 684, 685-686; see also Feinberg Bros. Agency v
Berted Realty Co., 70 N.Y.2d 828, 830). However, "
parties to a brokerage agreement are free to add whatever
conditions they may wish to their agreement, including a
condition that the contract of sale actually be consummated
before the broker is deemed to have earned his
commission'" (Feinberg Bros. Agency v Berted
Realty Co., 70 N.Y.2d at 830, quoting Levy v
Lacey, 22 N.Y.2d 271, 274). "[W]here the broker and
seller expressly provide that there shall be no right to a
commission unless some [additional] condition is fulfilled,
and the condition is not performed, the seller will
nevertheless be liable if he is responsible for the failure
to perform the condition" (Lane-Real Estate Dept.
Store v Lawlet Corp., 28 N.Y.2d 36, 43; see Levy v
Lacey, 22 N.Y.2d at 276; Dagar Group, Ltd. v South
Hills Mall, LLC, 12 A.D.3d 552, 554-555).
the Supreme Court properly concluded that, even considering
the documentary submissions of the sellers, the broker has a
cause of action to recover a broker's commission on the
ground that the sellers wrongfully or arbitrarily prevented
the completion of the deal (see Heelan Realty & Dev.
Corp. v Skyview Meadows Dev. Corp., 204 A.D.2d 601, 603;
cf. R.L. Friedland Realty v Modern Cabinets Corp.,
194 A.D.2d 657, 658; Stutzmann Realty v Petralia,
160 A.D.2d 994, 995-996; see generally CPLR
3211[a]). Moreover, contrary to the sellers'
contention, the documentary evidence submitted in support of
their motion did not utterly refute these allegations and
thereby conclusively establish a defense as a matter of law
(see generally CPLR 3211[a]).
the Supreme Court properly denied the sellers' motion
pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of