Gabrielli v. Fabian , 563 N.Y.S.2d 266 ( 1990 )

Mikoll, J.,

dissents and votes to affirm in a memorandum. Mikoll, J. (dissenting). I respectfully dissent.

The facts here are sufficiently controverted so that an issue of fact has been raised as to whether an agency agreement existed between the parties, what its terms were and whether plaintiff secured a ready, willing and able purchaser.

Plaintiff contends that after the written listing agreement expired, an oral agency agreement existed between plaintiff and defendants that was satisfied when plaintiff produced the school district as a prospective buyer. Plaintiff contends that the school district agreed to purchase the property on all the terms and conditions defendants demanded. These terms did not include a height limitation on any building constructed on the property. Thereafter, defendants interjected a one-story limitation that they had not previously insisted on. Defendants, on the other hand, contend that no final agreement was reached and plaintiff is, therefore, not entitled to a broker’s commission.

We are confronted here with a credibility issue between the parties, the resolution of which should await trial (see, Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439). Summary judgment was therefore properly denied in my view.