Majority
— In an action to recover a brokerage commission, the defendant Biaso Lepro appeals from so much of an order of the Supreme Court, Richmond County (Amann, J.), dated April 15, 1987, as denied his motion to dismiss the complaint insofar as it is asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
At the core of this dispute is a so-called "binder” allegedly signed May 6, 1986, by the appellant as seller and Mr. Maillius as the buyer of a described parcel of realty. This binder provides that the appellant will pay 5% commission to the plaintiff under certain conditions. The record raises questions of fact as to whether or not this binder contains all of the elements of the actual agreement of the parties. Those issues can only be resolved at a trial (see, Donner v Septimus, 122 AD2d 104 ). Bracken, J. P., Kunzeman, Spatt and Sullivan, JJ., concur.