Legal Memorandum: Entitlement to Brokerage Commission in NY

Issue: In New York, when is a real estate broker entitled to a commission?

New York law has long recognized that a plaintiff seeking to recover real estate brokerage fees must establish that he or she procured a prospect who reached agreement with the seller on all essential terms and who is ready, willing, and able to perform.  Wykagyl Agency, Inc. v. Rothchild, 100 A.D.2d 934, 935, 474 N.Y.S.2d 811, 812 (1984) (citing Biskind and Barasch, Law of Real Estate Brokers § 99.01).  Thus, where the parties merely engage in unsuccessful negotiations that do not result in agreement, a broker is not entitled to recover his or her commission. 

It is well established that a plaintiff must show something more than simply that the parties agreed on the purchase price in order to demonstrate a meeting of the minds as to the transaction.  See Concordant Assocs., Inc. v. Slutsky, 104 A.D.2d 920, 921, 480 N.Y.S.2d 540, 541 (1984).  While it is true that not every detail or issue must appear in the written contract for the broker to receive his commission, New York law requires that "all of the essential terms of the contract" be shown.  Id. at 921, 480 N.Y.S.2d at 541. 

New York courts have previously recognized property restrictions as one of the other "essential terms" that brokers must get parties to agree upon.  In Gabrielli v. Fabian, 167 A.D.2d 684, 563 N.Y.S.2d 266 (1990), the New York Court of Appeals held […]