While I concur in the result reached by the court, I do not rest my vote for reversal on the ground relied upon by the majority. I do not believe that at this juncture the brokerage agreement and its “ waiver ” provisions constitute a complete defense to this action. While the brokerage agreement here is identical with that presented in Wenger v. Lefrak (279 App. Div. 993, affd. 305 N. Y. 656) there is a most important distinction between the two eases. In the Wenger ease the default of the seller was postcontract, whereas in the instant case no contract was ever executed. As I read the agreement it could well have been made in contemplation that ft contract would be executed and that the waiver was intended to be operative only after such execution.* It is not difficult to perceive why a broker may be willing to waive his commissions after contract if title is not closed as opposed to waiving prior to contract. Once a contract is signed the chances of a default thereunder are considerably lessened by reason of the legal liabilities mutually attaching to the buyer and seller. I, therefore, cannot agree that it is clear to a point that no triable issue is presented that both precontract and postcontract defaults were included in the “waiver”.
However, despite my conclusion that there was at least a triable issue as to the scope of the “waiver”, I agree that summary judgment should be granted to the defendants. Essential to a recovery by the plaintiff is that a buyer was produced who was ready, willing and able to purchase on the terms offered by the seller. The affidavit of the attorney who handled the negotiations for the seller states that there was no acquiescence by the prospective buyer in the terms offered with respect to the leaseback arrangement. There is no specific denial of that statement, nor are there any facts given to offset it. Indeed, no affidavit was submitted by the plaintiff directly in opposition to the motion for summary judgment. There was only the affidavit offered in support of the plaintiff’s cross motion seeking leave to amend the complaint. However, even if we consider that affidavit as also being in opposition to the motion for summary judgment, it fails to supply what is needed to avoid the granting of such relief. All that can be found in that affidavit is a most conclusory, general and unsupported statement to the effect that the prospective buyer “ offered to meet the terms and conditions of the defendants”. Such statement hardly suffices to demonstrate the existence of the requisite triable issue of fact.
Breitel, J. P., McNally, Eager and Stener, JJ., concur in Per Curiam opinion; Rabin, J., concurs in result in opinion.
Order entered on February 7, 1961, denying defendants’ motion for summary judgment and granting plaintiff’s cross motion for leave to serve an amended complaint, unanimously reversed, on the law, with $20 costs and disbursements *931to the appellants, the motion for summary judgment granted and the cross motion denied.
See Heller & Henretig v. 3620-168th St. (302 N. Y. 326) where the agreement to waive commissions expressly addressed itself to precontract defaults as well as those occurring postcontract.