Bashant v. Spinella , 415 N.Y.S.2d 146 ( 1979 )

Callahan, J.

(dissenting). It appears from a review of the record that a prima facie case was established by plaintiff and it was therefore error to dismiss the complaint at the end of plaintiffs proof. Upon a motion to dismiss a complaint at the close of plaintiffs proof, plaintiff must be given the benefit of every inference which can reasonably be drawn from the proof (Mendelow v Slabodkin, 47 AD2d 712). The testimony at nisi prius indicated that the parties entered into an agreement whereby plaintiff was to receive a commission upon finding a buyer for defendants’ golf course at an agreeable price. Plaintiff found a buyer and assisted in negotiations until his listing agreement had expired. Shortly thereafter the buyer and the defendants entered into a contract. The purchase price was similar to that offered while plaintiff was still involved in the matter although the terms differed. Upon those unrebutted facts plaintiff may well have been entitled to a commission (Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36; Gallinger Real Estate v Mufale Dev. Corp., 53 AD2d 1014). The proof in a case for a broker’s commission would seldom be successful if the broker had to prove an agreement that he brought the parties together on a mutually agreed price. It is readily ascertainable in any such case that the agreed price is discounted as the broker’s commission, or what would have been an amount required to pay the broker, has been deducted. All that a broker need do to establish a prima facie case is introduce evidence tending to show the existence of an agreement and that he has procured a ready, willing and able purchaser at the price and terms of the seller (Lane — Real Estate Dept. Store v Lawlet Corp., supra). The record is sufficient to sustain a prima facie case and it was improper for the trial court to dismiss the complaint (Cohen v Hallmark Cards, 45 NY2d 493). (Appeal from judgment of Oneida Supreme Court — broker’s commission.) Present — Cardamone, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.