Justice Barbara Jaffe
Defendant 5 Hanover LLC moved for summary judgment dismissing the complaint. Optimal Spaces' principal, Sunderland, introduced tenant Children's Place West to Hanover regarding tenant's interest in Hanover's commercial space. Optimal sent Hanover's broker, Cushman & Wakefield, a lease counteroffer, providing for a broker's fee. Cushman sent Optimal a counterproposal providing it would not be binding until a lease agreement was mutually executed and exchanged by Hanover and tenant. While tenant and Hanover drafted and exchanged lease agreements, none were ever finalized or executed. The court noted despite the common law rule allowing a broker to recover a fee even if an underlying agreement was not consummated, unambiguous agreements providing for denial of a commission if an underlying transaction did not close were enforceable. It found no merit to Optimal's allegation its commission was not conditioned on the execution of a lease, noting the counterproposal specifically provided that nothing in it would be binding until a lease was executed, including its agreement to pay a commission upon the signing of a separate agreement. Yet, Hanover's motion for summary judgment was denied as factual issues remained unresolved.
