Helmsley-Spear, Inc. v. Kupferschmid ( 2003 )

—Order, Supreme Court, New York County (Helen Freedman, J.), entered March 21, 2001, which, inter alia, granted the motion of defendant Lawrence Kupferschmid for summary judgment dismissing the complaint as against him in this action for a brokerage commission, unanimously affirmed, with costs.

Since the sale of the subject property and plaintiff broker’s entitlement to a commission thereon were contingent upon the satisfaction of a condition which went unsatisfied through no fault of defendant Lawrence Kupferschmid, summary judgment dismissing the complaint against Lawrence Kupferschmid was proper (compare Carnegie v Abrams, 37 AD2d 327 and Heelan Realty & Dev. Corp. v Skyview Meadows Dev. Corp., 204 AD2d 601). We note that dismissal of the complaint as against defendant-respondent was additionally warranted since plaintiff failed to produce a buyer ready and willing to purchase the property on terms acceptable to defendant-respondent (see Lane — The Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 42). The “marked-up” contract returned to defendant-respondent by the lawyer for the buyer constituted a counteroffer (see Tencza v Hyland, 171 AD2d 1057, lv denied 78 NY2d 859) which defendant-respondent did not, and was not in good faith obliged to, accept. Concur — Tom, J.P., Buckley, Rosenberger, Friedman and Marlow, JJ.