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BERNARD MURPHY, plf-res, v. DIVERSIFIED RESIDENTIAL AND COMMERCIAL SERVICES, INC., def-ap

BERNARD MURPHY, plf-res, v. DIVERSIFIED RESIDENTIAL AND COMMERCIAL SERVICES, INC., def-ap. (12-249) — Judgment (Fernando Tapia, J.), entered on or about May 26, 2010, reversed, without costs, and action dismissed. The Clerk is directed to enter judgment accordingly.

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BERNARD MURPHY, plf-res, v. DIVERSIFIED RESIDENTIAL AND COMMERCIAL SERVICES, INC., def-ap. (12-249) — Judgment (Fernando Tapia, J.), entered on or about May 26, 2010, reversed, without costs, and action dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to establish entitlement to a return of the commission he paid directly to the defendant real estate broker, it being undisputed on this record that plaintiff remained in possession of the demised residential apartment for several months after entering into a lease agreement with the (nonparty) landlord. Absent an agreement to the contrary, not here shown, “a real estate broker earns his commission when he produces a party who is ready, willing and able to purchase or lease on the terms set by the seller lessor” (Kaplan-Belo Assocs., Inc. v. Farrelly, 221 AD2d 321 [1995], quoting Holzer v. Robbins, 141 AD2d 505, 506 [1988]). Since plaintiff cannot prevail “according to the rules and principles of substantive law” (CCA 1807), the small claims action must be dismissed.

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