Joseph Jacob, Doing Business as Sheila Berg Realty, Appellant, v. Patricia O'Brien, Respondent

Joseph Jacob, Doing Business as Sheila Berg Realty, Appellant, v Patricia O’Brien, Respondent. [675 NYS2d 285] [MAJORITY] —In an action to recover a real estate broker’s commission, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), entered July 22, 1997, as granted the defendant’s cross motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. The defendant’s proof was sufficient to make out a prima facie case that there was no meeting of the minds as to the sale of her residence and that the plaintiff therefore had not earned a commission. The plaintiff failed to produce evidentiary proof in admissible form establishing the existence of a material question of fact. Thus, the defendant was entitled to summary judgment (see, Hill Realty Servs. v Cummings, 244 AD2d 525; see also, Taibi v American Banknote Co., 135 AD2d 810; see generally, Alvarez v Prospect Hosp., 68 NY2d 320). Ritter, J. P., Santucci, Joy and Florio, JJ., concur.