Greene v. Hellman , 423 N.Y.S.2d 754 ( 1979 )

Judgment affirmed, with costs to plaintiff. Memorandum: This is an appeal from a judgment entered after trial without a jury awarding $18,750 to the plaintiff for commissions earned as a real estate broker. Implicit in the judgment of the trial court is a finding that the plaintiff’s efforts were the procuring cause of the sale. Such a finding was based in large measure upon the conflicting testimony involving the credibility of the witnesses and should not be disturbed unless unsupported by any fair interpretation of the evidence (Gallinger Real Estate v Mufale Dev. Corp., 53 AD2d 1014). While defendant maintains and the record confirms that there was no actual contact between him and the broker, the purchase offer submitted by the buyer explicitly set forth a provision acknowledging plaintiff’s efforts as a broker with a right to a commission. The buyer placed such a provision in the purchase offer exonerating him from paying a brokerage commission to the plaintiff and acknowledged the plaintiff as the person who had introduced the parties and presented him with a financial statement concerning the subject property. Under the circumstances this placed a burden on the defendant to check with the purchaser and settle with him the matter of his potential claim before accepting the offer. The offer was accepted by the defendant with this provision contained therein acknowledging plaintiff’s services. "If a broker’s communication with a purchaser brings the purchaser and the owner together and the sale results in consequence, brought about by the broker’s action as a procuring cause, the broker may be entitled to his commission although he did not negotiate between the parties, was not present at the sale and the owner did not even know that the customer was found by the broker (Lloyd v. Matthews, 51 N. Y. 124; Kalmanson v. Callahan, 276 App. Div. 983)” (Salzano v Pellillo, 4 AD2d 789, 790). We find sufficient credible evidence in the record to support the finding that the plaintiff was the procuring cause of the sale and see no compelling reason for disturbing the court’s determination (Busher Co. v Galbreath-Ruffin Realty Co., 22 AD2d 879, affd 15 NY2d 992). All concur, except Cardamone, J., who dissents and votes to reverse and grant a new trial, in the following memorandum.