Philadelphia Skyline

Braun Associates, LLC, V. Madison Third Building Companies, LLC

(Sup. Ct. NY 5/16/05)

In this action over a substantial broker's fee, plaintiff Broker's motion in limine for an order denying Defendant the right at trial to present to the trier of fact evidence as to the monetary and non-monetary performance of the tenant under the lease is denied. Typically, a tenant's subsequent default had no bearing on the broker's right to collect commission for procuring the lease because commission was earned when the broker produced a tenant who was ready, willing and able to enter into a lease acceptable to the terms of the lessor. But parties to a brokerage agreement may condition payment of commission on the happening of certain other events, such as tenants' actual payment of rent. Defendant argued that it was the "clear understanding of the parties" that a condition precedent to payment of the Broker's commission was the tenant's actual payment of rent. Here, where no written agreement exists and the Broker is pursuing a quantum meruit theory, the parties may submit evidence of conversations, negotiations and agreements made prior to and contemporaneously to the lease for the purpose of determining the intention of the parties as to how commission was to be calculated.  Link to Full Text of Decision

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