Opinion
No. 3288 Index No. 650486/24 Case No. 2024-04692
12-19-2024
Cantor Fitzgerald & Co., Plaintiff-Respondent, v. ObvioHealth Pte Ltd., et al., Defendants-Appellants.
Seiden Law LLP, New York (Ian Weiss of counsel), for appellants. Cantor Fitzgerald Securities, New York (Nirav S. Shah of counsel), for respondent.
Seiden Law LLP, New York (Ian Weiss of counsel), for appellants.
Cantor Fitzgerald Securities, New York (Nirav S. Shah of counsel), for respondent.
Before: Kapnick, J.P., Scarpulla, Mendez, O'Neill Levy, Michael, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered July 30, 2024, which granted plaintiff's motion for summary judgment and denied defendants' cross-motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the cross-motion granted. The Clerk is directed to enter judgment accordingly.
The court should have granted defendants' cross-motion for summary judgment. Plaintiff's argument that the parties' letter agreement gave it an exclusive right to sell is unavailing. To create an exclusive right to sell, a contract "must clearly and expressly provide that a commission is due upon sale by the owner or exclude the owner from independently negotiating a sale" (Morpheus Capital Advisors LLC v UBS AG, 23 N.Y.3d 528, 535 [2014] [internal quotation marks and alterations omitted]). The agreement here lacks express language excluding a direct conveyance by defendants, nor is that a necessary implication of its terms (see e.g. Silvergrove Advisors, LLC v Crosswing Holdings LLC, 197 A.D.3d 1057 [1st Dept 2021]; Miron Props., LLC v Eberli, 126 A.D.3d 479 [1st Dept 2015], lv denied 26 N.Y.3d 911 [2015]). The agreement's language requiring defendants to "inform" plaintiff if contacted about potential transactions is insufficient to create an exclusive right to sell (see e.g. Silvergrove,197 A.D.3d at 1058). Moreover, plaintiff fails to show that the agreement's tail provision, entitling plaintiff to a fee for efforts at procuring a transaction during its engagement even if the transaction were completed only after the termination of that engagement, necessarily implied that the parties intended to create an exclusive right to sell.
Plaintiff's alternative argument that it procured the investment in the equity raise that occurred is also unavailing. Plaintiff fails to establish a "direct and proximate link" between its efforts and the consummated deal, as opposed to "indirect and remote" involvement (SPRE Realty, Ltd. v Dienst, 119 A.D.3d 93, 98 [1st Dept 2014] [internal quotation marks omitted]).