Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment entered November 15, 1995, is reversed, on the law, so much of the order dated October 17, 1995, as granted the motion by Maurice B. Cunningham, Inc., the plaintiff in Action No. 2, for summary judgment on the complaint is vacated, and the motion is denied; and it is further,
Ordered that the judgment entered February 22, 1996, is reversed, on the law, so much of the order dated October 17, 1995, as denied the appellant's motion for summary judgment and granted the cross motion by the defendants Harry B. Martin and Melanie Martin, inter alia, for summary judgment on their counterclaims is vacated, the cross motion is denied, and that branch of the appellant's motion which was for summary judgment dismissing the second counterclaim by Harry B. Martin and Melanie Martin is granted; and it is further,
Ordered that the appellant is awarded one bill of costs.
The commission agreement signed by the appellant provided that the appellant would pay the commission "at closing". Generally, a broker is entitled to a real estate commission when he produces a buyer who is ready, willing, and able to purchase the property on terms acceptable to the seller (see, Lane — Real Estate Dept. Store v Lawlet Corp., 28 N.Y.2d 36; see also, Rusciano Realty Servs. v Griffler, 62 N.Y.2d 696). However, the parties to a commission agreement may provide for a commission to be payable contingent upon the closing of title (see, Welch Real Estate v Heritage Broadcasting Co., 192 A.D.2d 891; Cook/Pony Farm Real Estate v Spartan Enters., 157 A.D.2d 766). Issues of fact were presented as to whether the broker's right to receive a commission was contingent upon a closing and thus, the court erred in awarding the broker summary judgment (see, H.B.L.R., Inc. v Command Broadcast Assocs., 156 A.D.2d 151; Hared Realty Corp. v Esikoff, 143 A.D.2d 730; Greiner-Maltz Co. v Kalex Chem. Prods., 142 A.D.2d 552).
The Supreme Court also erred in awarding the sellers' partial summary judgment on their second counterclaim, which was to recover damages for slander of title. This counterclaim was
Finally, the sellers were not entitled to judgment as a matter of law on their first counterclaim for liquidated damages due to the appellant's alleged breach of contract as issues of fact exist, inter alia, as to whether the sellers' declaration that time was of the essence was reasonable under the circumstances (see, Ehrlich v Island Plus Agency, 205 A.D.2d 579).