Opinion
No. 588.
May 19, 2009.
Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered September 4, 2008, dismissing the cross claim of defendants-appellants GVA Williams, LLC and Williams Real Estate Co., Inc. against defendants-respondents GI Partners Fund II, L.P. and GI Partners Side Fund II, L.P. seeking a declaration that, inter alia, they are entitled to a brokers commission from respondents, pursuant to an order that granted respondents motion to dismiss THE cross claim, unanimously affirmed, without costs.
Tannenbaum Helpern Syracuse Hirschtritt LLP, New York (Jamie B.W. Stecher of counsel), for appellants.
O'Shea Partners LLP, New York (Jonathan Altschuler of counsel), for Rory Cutaia, respondent.
Paul Hastings Janofsky Walker LLP, New York (Gerald J. Fields of counsel), for GI Partners Fund II, L.P. and GI Partners Side Fund II, L.P., respondents.
Before: Andrias, J.P., Saxe, Sweeny, Nardelli and Freedman, JJ.
Dismissal of the cross claim was appropriate where the documentary evidence established that appellants' right to act as exclusive agent in connection with the subletting of the premises or any assignment thereof was not triggered by the transaction in the merger agreement, and thus appellants were not entitled to a commission ( see Far Realty Assoc. Inc. v RKO Del Corp., 34 AD3d 261). Furthermore, contrary to appellants' contention, there was no basis for permitting discovery based on their conjecture as to the possibility that a third party performed brokerage services ( see e.g. Turbel v Societe Generate, 276 AD2d 446).
[ See 2008 NY Slip Op 32393(U).]