Maurice B. Cunningham, Inc. v. Nugent Street Corp. ( 1994 )

—In an action to recover a broker’s commission, the defendants appeal from an order of the Supreme Court, Suffolk County (Newmark, J.), dated April 16, 1992, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The brokerage agreement here provides for payment of a broker’s commission "if and when title passes”. "[S]ince no deal between the prospective purchaser and the seller ever materialized in legal, written form, the seller could not be in default of the broker’s agreement and was free until then to negotiate with other prospective purchasers without becoming liable for a commission” (Graff v Billet, 101 AD2d 355, 356-357, affd 64 NY2d 899). The defendants’ motion is therefore granted, and the complaint is dismissed. Balletta, J. P., Ritter, Copertino and Goldstein, JJ., concur.