Houlihan Parnes Realtors, Respondent, v. Lazar Gazivoda, Appellant

Houlihan Parnes Realtors, Respondent, v Lazar Gazivoda, Appellant. [MAJORITY] — In an action to recover damages for breach of a brokerage agreement, defendant appeals from (1) a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered March 25,1983, which, after a jury trial, was in favor of plaintiff in the sum of $115,967.75 and (2) an order of the same court, dated April 12,1983, which, inter alia, denied defendant’s motion to set aside the jury verdict. 11 Judgment reversed, on the law, without costs or disbursements, and complaint dismissed. 11 Appeal from the order dismissed, without costs or disbursements, in light of our determination on the appeal from the judgment. H Plaintiff broker failed to establish (1) that defendant seller agreed to employ plaintiff on a commission basis and (2) that plaintiff had procured a ready, willing and able purchaser at a price and on terms agreeable to defendant. In these circumstances, plaintiff is not entitled to recover a commission (Hecht v Meller, 23 NY2d 301; Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36). O’Connor, J. P., Brown, Boyers and Eiber, JJ., concur.