On September 15, 2016, the First Department issued a decision in NRT N.Y. LLC v. Johnson, 2016 NY Slip Op. 06047, holding that a broker was not entitled to a commission because payment of the commission was contingent on closing, explaining:
The exclusive brokerage agreement unambiguously made the closing of title an express condition precedent to plaintiff broker’s right to its commission. No closing ever took place, either before or after the agreement terminated, which passed title to any buyer identified during the term of the agreement. Nor did the Board of Managers for the condominium take title. The closing on the sale of the apartment took place after the exclusive broker agreement expired and with an entity/person who was, in any event, a carve out under the agreement. Plaintiff is not entitled to a commission.
(Internal quotations and citations omitted).