Andrew Development Corp. v. West Esplanade Corp.

GULOTTA, Judge (concurring). I concur with the result. This is a suit for a real estate commission. The buy-and-sell agreement provides as follows: “If this offer is accepted, seller agrees to pay the agent’s commission of $28,-000.00 which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.” (emphasis ours) For whatever reasons, the loan has not been secured by purchaser. The commission has not been earned. Any question of the seller’s breach might affect the rights as between the buyer and seller under the contract, but this is not a suit by the purchaser against the seller or the seller against the purchaser. This is a claim by a real estate agent for the commission. Plaintiff’s entitlement to the commission, under the contract, becomes effective when the loan is secured. Since the loan was never secured, plaintiff is not entitled to the commission. For these reasons, I concur with the result dismissing by summary judgment the agent’s claim for his commission.