In this action for a brokerage commission, the IAS court improperly awarded summary judgment to plaintiff. A broker is only entitled to his commission when he produces a buyer who is ready, willing and able to purchase the premises on the terms set forth by the seller (Cushman Wakefield v. 214 East 49th Street Corp., 218 A.D.2d 464 appeal dismissed 88 N.Y.2d 951). The contract offered by the proposed purchaser contained terms which deviated from defendant's offer of sale, specifically : that three floors of the building had to be vacant (instead of the ground floor and basement); that the third-floor tenant had to relinquish certain existing lease rights; and, that defendant would be obligated to pay a portion of any asbestos removal. None of these terms were contained in defendant' s offer. There exist unresolved issues of fact, including whether, as plaintiff contends, it was defendant's unilateral efforts which defeated the sale.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.