Opinion
January 29, 1991
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Plaintiff, a search firm which places lawyers with law firms for a commission, entered into a finder's fee agreement dated May 21, 1986 with defendant law firm Windels, Marx, Davies Ives (WMDI) pursuant to which WMDI agreed to compensate plaintiff if, as a result of negotiations initiated between defendant Detlef G. Lehnardt, Esq. and the firm, he became a member of the firm. Plaintiff's compensation for bringing Lehnardt to WMDI's attention was to be 5% of Lehnardt's average annual billings for the last three preceding years as shown on his previous firm's financial statements or similar records, the fee not to exceed $33,000.
The negotiations which took place between Lehnardt and WMDI in 1986 were terminated as a result of certain conflicts which existed between a client of Lehnardt and a client of WMDI. WMDI alleged that it notified plaintiff of the termination of its negotiations with Lehnardt and of its decision to terminate its relationship with plaintiff. In January of 1989, Lehnardt became a partner at WMDI and plaintiff sued to recover its fee.
Plaintiff moved for summary judgment claiming that the only event triggering WMDI's liability occurred when Lehnardt became a member of the firm. WMDI maintained that Lehnardt contacted the firm in late 1988 and that plaintiff played no part in the negotiations which ensued. The firm also claimed that its discussions with Lehnardt in 1988 were not a mere resurrection of the negotiations which took place in 1986 and that the terms upon which Lehnardt joined the firm differed from the terms discussed in 1986. The Supreme Court awarded plaintiff summary judgment on its first cause of action based on the finder's fee agreement.
It is for the jury to determine whether a connection can be traced between plaintiff's initial introduction of Lehnardt to WMDI and the termination of the entire transaction some two years later (see, Simon v Electrospace Corp., 28 N.Y.2d 136, mot to clarify opn and amend remittitur denied 28 N.Y.2d 809; Seckendorff v Halsey, Stuart Co., 234 App. Div. 61, revd on other grounds 259 N.Y. 353). While parties may, in certain circumstances, reach a specific understanding that a finder's commission will be payable even if the finder's efforts are not a direct or procuring cause of acquisition, the contract herein is ambiguous on this point and the intent of the parties cannot be clearly discerned from the surrounding circumstances (Beverley v Mickelberry Corp., 161 A.D.2d 292; cf., De Fren v Russell, 71 A.D.2d 416). Accordingly, it was error to grant plaintiff's motion for summary judgment on its first cause of action.
Concur — Rosenberger, J.P., Asch, Kassal, Wallach and Smith, JJ.