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Current Developments in the Commercial Divisions of the
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Posted: July 24, 2015

Jury’s Brokerage Fee Award Vacated Due to Lack of Evidence Proposed Buyer Was Able to Purchase

On July 8, 2015, the Second Department issued a decision in Island Associates Real Estate, Inc. v. Doukas, 2015 NY Slip Op. 05913, reversing a jury verdict awarding a broker’s commission.

In Island Associates Real Estate, the trial court refused to set aside a jury verdict awarding the plaintiff a broker’s commission. The Second Department reversed the trial court, explaining that:

[u]nless the parties have agreed otherwise, a real estate broker will be deemed to have earned his commission when he produces a purchaser who is not only ready and willing to purchase at the terms set by the seller, but able to do so as well“. The prospective buyer’s financial ability is an essential element, and one which the plaintiff is required to establish in order to recover. Here, a fair interpretation of the evidence does not support the jury’s finding that the prospective buyer whom the plaintiff produced was financially able to purchase the property designated as lots five and six. The notice of intent to purchase this property that the plaintiff produced did not establish the element of financial capability.

(Internal quotations and citations omitted) (emphasis added).

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