On May 13, 2025, the First Department issued a decision in Picken v. RN Realty LLC, 2025 NY Slip Op. 02888, holding that a real estate broker was entitled to a commission if the seller thwarted the transaction in order to avoid paying the commission, explaining:
This long-running litigation arises from a dispute as to whether plaintiff, a licensed real estate broker, is entitled to a brokerage commission fee from the seller even though the parties did not have a formal brokerage agreement in place and the seller ultimately consummated a deal with a party not affiliated with the broker. On a prior appeal, this Court held that a trial is necessary to determine the question of whether defendant seller thwarted the natural progress of negotiations with plaintiff brokers in order to avoid paying plaintiffs a brokerage commission and that there was a question of fact as to whether the transaction was plainly and evidently approaching success.
A broker is entitled to a commission under a theory of implied brokerage agreement where it shows it procured a ready, willing and able buyer for a transaction that was approaching success but was thwarted or frustrated by a seller who backed out to avoid the payment of the commission and not for a good faith reason such as a fair view of its own interests. To prove entitlement to a brokerage commission, the broker must show that the transaction was approaching success, and the broker’s client frustrated the proposed deal to avoid paying the broker a commission. During the trial, Supreme Court committed a fundamental error by charging the jury to determine whether the prospective transaction between the procured buyer and defendant seller was plainly and evidently approaching success and defendant thwarted or frustrated the natural progress of the transaction, without also charging the jury to determine whether defendant thwarted the transaction in order to avoid paying plaintiff the brokerage commission. This error resulted in the jury being prevented from fairly considering the issues at trial.
(Internal quotations and citations omitted).