Blake Realty, Inc. v. Gilligan , 155 A.D.2d 816 ( 1989 )

— Casey, J.

Appeal from an order of the Supreme Court (Brown, J.), entered August 8, 1988 in Saratoga County, which granted plaintiff’s motion for summary judgment.

Plaintiff seeks recovery of a real estate broker’s commission due as the result of defendant’s sale of commercial property owned by him which was the subject of an exclusive listing agreement between the parties. In support of its motion for summary judgment, plaintiff submitted a copy of the exclusive listing agreement signed by defendant and accepted by plaintiff, together with an affidavit alleging that the property had been sold by defendant during the term of the exclusive listing agreement. Defendant conceded that he had signed the agreement and that the property had been sold as alleged by plaintiff. Defendant argued, however, that no contract had been entered into because there were ongoing negotiations as to whether a sale by defendant to one of several persons with whom he had had discussions prior to the listing with plaintiff would be exempt from the exclusive listing agreement. According to defendant, there was no meeting of the minds and he did not assent to the terms of the agreement because this matter was unresolved.

On its face, the listing agreement, which defendant concededly signed, clearly provides that plaintiff would be entitled to its 10% commission if, inter alla, defendant sold the property himself during the term of the listing, and there are no exceptions, exemptions or conditions to this provision. The agreement also states that defendant read the agreement and understood its terms, and the agreement expressly provides that "[t]his agreement shall be binding upon the parties hereto”. In the face of this clear and unambiguous language, defendant’s argument must fail, for "[a]n individual who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of the other contracting party, is conclusively presumed to know its contents and to assent to them” (Fiorentino Assocs. v Green, 85 AD2d 419, 420; see, Metzger v Aetna Ins. Co., 227 NY 411, 416).

In opposition to plaintiff’s motion for summary judgment, defendant also claimed that plaintiff failed to market or otherwise broker the sale of defendant’s property, and on appeal defendant claims that plaintiff is not entitled to summary judgment since the listing agreement conditions plaintiff’s right to a commission upon its listing of the property in accordance with the rules and regulations of the multiple listing service. According to defendant, there is a factual issue as to whether plaintiff complied with this condition. Pursuant to CPLR 3015 (a), however, defendant was required to include in its answer a denial of the performance of a condition precedent, which "shall be made specifically and with particularity”. Defendant’s answer contains no such denial.

Defendant has failed to establish the existence of factual issues which, if resolved in defendant’s favor, would preclude plaintiff from recovery of a commission on the sale of defendant’s property. Supreme Court’s ruling granting plaintiff’s motion for summary judgment should, therefore, be affirmed.

Order affirmed, with costs. Mahoney, P. J., Casey, Weiss and Harvey, JJ., concur.