Feinberg Bros. Agency, Inc., Respondent-Appellant, v. Berted Realty Co., Inc., Appellant-Respondent

Feinberg Bros. Agency, Inc., Respondent-Appellant, v Berted Realty Co., Inc., Appellant-Respondent. [MAJORITY] In the instant case, the letter of the plaintiff broker to the defendant stated that the plaintiff’s commission was "due and payable in full upon closing”. Under the maxim contra proferentem, where "there is any doubt or uncertainty as to the meaning of the disputed language in the brokerage agreement, all ambiguity must be resolved against the broker who prepared it” (Graff v Billet, 64 NY2d 899, 902, and cases cited therein). Therefore, we must construe the language here against the plaintiff and in favor of the defendant, and find that the defendant was not required to pay the commission until closing had taken place. As that eventuality never occurred, the plaintiff cannot recover any commission from the defendant, and the defendant is entitled to summary judgment dismissing the complaint. Bracken, Kooper and Spatt, JJ., concur. [CONCURRENCE — Lazer, J. P.,] Lazer, J. P., concurs in the result, with the following memorandum: I concur but on a somewhat different basis than the majority. I see nothing ambiguous about the broker’s writing that its commission was "due and payable in full upon closing”. Since the seller received a better offer before going to contract with the plaintiff’s buyer, under the rule established in Graff v Billet (64 NY2d 899), the seller was free of any obligation to the broker, even though the latter had produced a buyer ready, willing and able to buy on the seller’s terms.