In re New York City School Construction Authority

H. Miller, J.,

concurs in part and dissents in part and votes to dismiss the appeal from the order and to affirm the judgment, with the following memorandum, in which Friedmann, J., concurs. Although I agree with the majority that the appeal from the order must be dismissed pursuant to Matter of Aho (39 NY2d 241, 248), I respectfully disagree with the majority’s decision to reverse the judgment. In my view, Empress Realty (hereinafter Empress) is entitled to a brokerage commission under the circumstances of this case.

The relevant facts are as follows: The parties executed a brokerage agreement…