Dagar Group, Ltd., Respondent, v. Hannaford Bros. Co., Defendant, and Wappingers Associates, LLC, Appellant

Dagar Group, Ltd., Respondent, v Hannaford Bros. Co., Defendant, and Wappingers Associates, LLC, Appellant. [744 NYS2d 862] [MAJORITY] —In an action to recover a real estate broker’s commission, the defendant Wappingers Associates, LLC, appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated May 21, 2001, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed. To earn a commission, a real estate broker must prove that it had a contract, either express or implied, with the party to be charged with paying the commission and that he or she was the procuring cause of the sale (see Buck v Cimino, 243 AD2d 681). The Supreme Court improperly denied the motion of the defendant Wappingers Associates, LLC (hereinafter Wappingers), for summary judgment on the plaintiff’s sole cause of action against it seeking recovery in quantum meruit. Wappingers established that it did not have an implied contract with the plaintiff, since it neither accepted or requested any of the plaintiffs services. The plaintiff failed to raise an issue of fact in this regard (see CPLR 3212 [fl). Ritter, J.P., Krausman, Friedmann and McGinity, JJ., concur.