F.S. Marino Realty, Inc. v. Testa , 724 N.Y.S.2d 622 ( 2001 )

—In an action to recover a real estate broker’s commission, the plaintiff appeals from so much of a judgment of the Supreme Court, Queens County (La Fauci, J.H.O.), entered May 8, 2000, as, after a nonjury trial, dismissed the complaint.

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The agreement at issue provides for payment of a broker’s commission only “when, as and if title closes.” The agreement further contains an exception that if the seller willfully defaults in performance of the contract of sale, a commission will be due. Contrary to the appellant’s contention, the Supreme Court properly determined that it failed to prove that the seller was in willful default of the contract of sale for the subject property (cf., Graff v Billet, 64 NY2d 899; Levy v Lacey, 22 NY2d 271, 276).

The appellant’s remaining contentions are without merit. Ritter, J. P., McGinity, H. Miller and Townes, JJ., concur.