This is an action for breach of a real estate brokerage contract. Plaintiff retained defendant to help him rent an apartment for himself and his family, pursuant to an agreement which provided:
“The undersigned hereby engages Dwelling Quest to act as broker on their behalf for the purpose of assisting in the location and renting of a suitable apartment. In consideration of Dwelling Quest having directed the undersigned to any of the addresses listed below, should the undersigned or anyone acting on their behalf rent, sublet, or in any way obtain an apartment in any of the buildings, the undersigned agrees to pay Dwelling Quest, at the time of lease signing, a commission ...” (emphasis supplied).
Defendant’s agent, Cindy Gise, found an apartment which seemed to meet plaintiffs needs. However, in August 2000, prior to the commencement of the executed lease, plaintiff happened to visit the apartment and found that due to an extensive renovation project at the building, the apartment did not meet even a minimal standard of habitability, and that it would remain in this condition for six to eight months. Although the trial testimony reveals that Dwelling Quest made some further attempts to find another apartment for plaintiff, these efforts were ultimately abandoned.
At common law “a broker who ‘produces a person ready and willing to enter a contract upon his employer’s terms . . . has earned his commissions’ ” (Feinberg Bros. Agency, Inc. v Berted Realty Co., 70 NY2d 828, 830 [1987], quoting Tanenbaum v Boehm, 202 NY 293, 299 [1911]). However, there is a corollary right of the parties to “ ‘add whatever conditions they may wish to their agreement’ ” (Feinberg, supra at 830 [citation omitted]; see also Graff v Billet, 64 NY2d 899 [1985] [agreement for sale of property explicitly stating that commission was due and payable at the time of passing of title to property]).
The language of the instant brokerage agreement, which required defendant to “assist[ ] in the location and renting of a suitable apartment” is ambiguous as to the parameters of defendant’s duties. The contract is also unclear as to whether the requirement that the commission be paid at the signing of the lease limits the broker’s substantive obligations as of the signing of a lease, or whether this provision was merely included to indicate the point at which payment was due. Because it is *44settled that any ambiguities in a contract must be construed against the drafter (Jacobson v Sassower, 66 NY2d 991, 993 [1985]), I interpret it to provide that in consideration for the payment of a commission, defendant agreed to procure an apartment for its client suitable for rental, and I find that defendant’s substantive obligations were not discharged at the time of the signing of this lease. Further, because plaintiff could not move into this apartment, due to its state of disrepair, I would conclude that defendant did not meet its obligation to find plaintiff a suitable apartment, and it was not entitled to retain the $13,000 brokerage commission.
The trial testimony of Cindy Gise, the agent who signed the contract on Dwelling Quest’s behalf, is revealing. When asked about her understanding of when defendant’s right to the commission vested, she testified that as a broker, she did not earn her commission unless the brokerage service resulted in the client actually taking up residence in the apartment.
The majority finds the instant agreement to be simple, clear and uncomplicated. Curiously, the majority’s interpretation of the contract is in direct conflict with the interpretation of both plaintiff and the Dwelling Quest agent assigned to the deal. The majority also mischaracterizes my position as proposing “a fundamental change in the law related to real estate brokers,” specifically criticizing what it views as a “well-intentioned” but “misguided” “insertion of an implicit condition in the brokerage agreement.” I disagree, given that any conclusions as to the rights and duties of the parties to this specific contract are governed by the settled principles of contract law. Faced with an ambiguous agreement, I have construed the uncertainty as to whether a “suitable” apartment was a condition precedent to the broker’s entitlement to a commission against the drafter, defendant Dwelling Quest (see Jacobson, supra).
Supporting our interpretation, Gise’s testimony demonstrates that the precondition of placing the tenant in the residence was consistent with the expectations of the parties. Because there was no minimally habitable apartment available for plaintiff and his family as of the date of commencement of this lease, I would find that Dwelling Quest was not entitled to a broker’s commission for this rental.
The majority also contends that the Second Department’s holding in Kaplon-Belo Assoc. v Farrelly (221 AD2d 321 [1995]) requires a reversal here. In that case, the tenant defaulted after a lease was signed, and the Court held that the landlord’s bro*45ker was still entitled to its full commission based upon the well-settled rule that
“ ‘absent an agreement to the contrary, 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’ (Holzer v Robbins, 141 AD2d 505, 506).” (Kaplon-Belo, 221 AD2d at 321.)
The distinction between this case and Kaplon-Belo is that the agreement in this case contained language specifying that defendant would find plaintiff a “suitable” apartment. In addition, as discussed, defendant’s agent confirmed that the broker was required to place a tenant in an apartment before it earned its commission. The ambiguity in the instant contract takes this case out of the realm of the common-law rules generally applicable to a brokerage agreement, and as interpreted, I find that the instant agreement obliged defendant to place its client in a suitable apartment. Having failed to perform its obligations under this contract, defendant was not entitled to a commission.
Finally, there is no disagreement that a balancing of the equities favors plaintiffs position. Plaintiff and his family anticipated moving into their apartment on August 15, 2000. After signing the lease, but before the move-in date, plaintiff happened to visit the apartment, to discover a degree of disrepair which the landlord agreed was grounds for canceling the lease. Nonetheless, plaintiff, his wife and his three young children were left without a place to live, a week before their intended move. They were forced to stay at a hotel until they found another apartment.
Accordingly, I would agree with the Civil Court and the Appellate Term that because defendant did not meet its obligation of procuring a “suitable” apartment for plaintiff “[t]he entire transaction can only be reasonably viewed as a nullity, as it was by the immediate parties to the lease” (Srour v Dwelling Quest Corp., 2003 NY Slip Op 50633[U], *3 [App Term, 1st Dept 2003]). Accordingly, I would affirm the order appealed and direct the return of a brokerage commission in the principal amount of $13,000.
Nardelli, J.E, and Tom, J., concur with Saxe, J.; Mazzarelli and Lerner, JJ., dissent in a separate opinion by Mazzarelli, J.
Order of the Appellate Term of the Supreme Court, First Department, entered March 19, 2003, affirming a judgment of *46the Civil Court, New York County, entered August 20, 2001, reversed, on the law, without costs, the judgment vacated and the complaint dismissed. The Clerk is directed to enter judgment accordingly.