Opinion
2012-02-16
STERLING RESOURCES INTERNATIONAL, LLC, Plaintiff–Appellant, v. LEERINK SWANN, LLC, Defendant–Respondent.
Sack & Sack, New York (Jonathan Sack of counsel), for appellant. Curley, Hessinger & Johnsrud LLP, New York (Michael A. Curley of counsel), for respondent.
Sack & Sack, New York (Jonathan Sack of counsel), for appellant. Curley, Hessinger & Johnsrud LLP, New York (Michael A. Curley of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, RENWICK, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 14, 2010, which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss the first cause of action pursuant to CPLR 3211(a)(1), unanimously modified, on the law, to deny the motion with respect to so much of the first cause of action as seeks $300,000 for finding a Head of Investment Banking, and otherwise affirmed, without costs.
The amended complaint alleges, “Pursuant to the Retainer Agreement, [defendant] retained [plaintiff] to be its exclusive recruiting firm in its search to identify, recruit and hire a Head of its Investment Banking division and other investment banking professionals ” (emphasis added). However, the provisions of a contract “prevail over conclusory allegations of the complaint” ( 805 Third Ave. Co. v. M.W. Realty Assoc., 58 N.Y.2d 447, 451, 461 N.Y.S.2d 778, 448 N.E.2d 445 [1983] ). Read as a whole, the Retainer Agreement clearly refers only to the hiring of a Head of Investment Banking ( see e.g. Matter of Westmoreland Coal Co. v. Entech, Inc., 100 N.Y.2d 352, 358, 763 N.Y.S.2d 525, 794 N.E.2d 667 [2003]; Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 [1998] ).
The Retainer Agreement is not ambiguous, because plaintiff's interpretation—that the contract applies to individuals other than a Head of Investment Banking—is not reasonable ( see e.g. Chimart Assoc. v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231 [1986] ). By contrast, defendant's interpretation—that the Multiple Hires provision of the agreement would apply if defendant ended up hiring co-Heads of Investment Banking—accords with the overall purpose of the contract ( see e.g. Kass, 91 N.Y.2d at 567, 673 N.Y.S.2d 350, 696 N.E.2d 174).
Plaintiff may not use extrinsic evidence to create an ambiguity in the Retainer Agreement ( see e.g. W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990] ).
Although defendant's interpretation of the Retainer Agreement is correct, the first cause of action should not have been dismissed in its entirety. The parties agree that defendant owes plaintiff $450,000 for the Head of Investment Banking whom plaintiff found for defendant and whom defendant hired. The documentary evidence shows that defendant has paid only $150,000. Therefore, plaintiff has a breach of contract claim for the remaining $300,000.