David Day Realty, Inc. v. Farras , 75 A.D.2d 782 ( 1980 )

Order of the Supreme Court, New York County, entered July 12, 1979, denying defendants’ motion for summary judgment, unanimously reversed, on the law, with costs and disbursements, and the motion for summary judgment granted. In this action for brokerage commissions, defendants, the owners of the building, are entitled to summary judgment. From the affidavits and exhibits submitted upon consideration of the motion, it is apparent that there was never an agreement for the sale of the premises. There never was a meeting of the minds of the prospective purchasers and defendants as to the purchase price, the extent of the cash required and whether the balance of the purchase price, if any, should be by purchase-money mortgage or other financing. No date for contract or closing of title was set. Moreover, it appears that the prospective purchasers conditioned the purchase upon an examination of the premises by a structural engineer which examination never occurred. Hence, there was no agreement between the prospective purchasers and sellers to "all the terms customarily encountered” in a real estate transaction. In the absence of such agreement, plaintiff did not earn any brokerage commission (Kaelin v Warner, 27 NY2d 352, 355). Concur—Murphy, P. J., Kupferman, Birns, Markewich and Yesawich, JJ.