dissents in a memorandum. Casey, J. P. (dissenting). "[A] licensed real estate broker is a fiduciary for his client, and must exercise the utmost good faith and loyalty in his performance” (Weissman v Mertz, 128 AD2d 609, 610, appeal dismissed 69 NY2d 1036, lv denied 70 NY2d 608; see, Matter of Grant Realty v Cuomo, 58 AD2d 251, 255). The record establishes as a matter of law that, in procuring the prospective purchaser herein, plaintiff failed to exercise the utmost good faith and loyalty to defendants, and as a result defendants contracted with a prospective purchaser who was either unwilling or unable to perform. Plaintiff, therefore, is not entitled to a commission, and Supreme Court’s order granting summary judgment to defendants should be affirmed.
According to the deposition of the selling agent, the prospective purchaser telephoned to inquire about defendants’ property and made an oral offer of $100,000 without ever having seen the interior of the premises. The agent informed defen*1094dants of the proposed purchase price, which they said would be acceptable. The agent then contacted the prospective purchaser and explained that a downpayment of 10% upon signing the contract was normal. The prospective purchaser told the agent "that she had the money but to get it would be very difficult at this time”. The prospective purchaser offered to make an initial downpayment of Vz% ($500) and pay an additional $4,500 "at the end of the month”. Although the conduct of the proposed purchaser would prompt a reasonably prudent broker to investigate the buyer’s financial ability to produce $100,000 at closing, plaintiff merely informed defendants of the offer and drew up a contract of sale by using a standard form and inserting the terms offered by the prospective purchaser. The prospective purchaser signed the contract, but apparently was unable to pay the $500 downpayment until some later time.
In these circumstances, defendants, who neither negotiated directly with the prospective purchaser nor had any knowledge of her financial ability, cannot be deemed to have "accepted” the buyer so that the broker is relieved of the necessity of showing that the purchaser was ready, willing and able to perform (cf., Agency, Broad & Cornelia St. v Lavigne, 97 AD2d 934, lv dismissed 61 NY2d 605, 904). It is also clear that plaintiff departed from his role as defendants’ agent and acted, at least in part, for the benefit of the prospective purchaser. As a result, plaintiff produced an offer upon terms set by the prospective purchaser, instead of producing a buyer who was ready, willing and able to purchase upon terms set by defendants. Because plaintiff produced such an offer without making any inquiry into the financial ability of the prospective purchaser, which clearly would have been prudent in the circumstances, plaintiff failed to fulfill his duty to defendants to exercise the utmost good faith and loyalty in his performance. Consequently, defendants entered into a contract of sale with a prospective purchaser who was either unable or unwilling to perform, as is plainly established by the purchaser’s unexplained failure to make any effort to pay the $4,500 additional downpayment called for by the contract. Having failed to exercise the utmost good faith and loyalty to defendants, and having produced a prospective purchaser who was unable or unwilling to perform, plaintiff is not entitled to a commission merely because a contract of sale was signed by defendants.