Summary
In O'Connell plaintiff sought compensation for bringing together the defendant and a third person which meeting resulted in an award of a construction contract to the defendant.
Summary of this case from Maemone v. Koren-Diresta Constr. Co., Inc.Opinion
October 10, 1967
Order entered June 6, 1967, herein appealed from, unanimously modified, on the law, to the extent of striking the first, second and fourth causes of action, and is otherwise affirmed, without costs and without disbursements. This action was brought to recover fees for services rendered in aiding defendant to obtain construction contracts. The defendant moved to dismiss the complaint pursuant to CPLR 3211 (subd. [a], par. 5) and to direct the entry of summary judgment on the grounds that the four causes of action were barred by the Statute of Frauds (Personal Property Law, § 31, subd. 10 [now General Obligations Law, § 5-701]). While the defendant did not plead the statute as a defense in its answer, it made application in its motion for summary judgment for leave to amend the answer to interpose such defense to each cause. Plaintiff had been previously warned of such a defense by reason of a stipulation between the parties. The motion to amend was granted but summary judgment was denied. Under the circumstances shown the leave granted is not held to be prejudicial to the plaintiff. The first cause of action is in contract. Plaintiff seeks compensation for bringing together the defendant and a third person which meeting resulted in an award to the defendant of a construction contract for the Better Living Pavilion at the New York World's Fair. The second cause, in quantum meruit, seeks recovery for the services alleged to have been performed in the first cause of action. The third cause is in contract and seeks compensation for aiding the defendant in obtaining the Ford Motor Company Pavilion construction contract. The fourth, in quantum meruit, seeks recovery for the services alleged to have been performed in the third cause of action. Admittedly there was no written contract evidencing the alleged agreements. Plaintiff relies upon a letter written by the defendant which plaintiff contends is sufficient to satisfy the requirements of the Statute of Frauds. This letter, dated December 6, 1962, states that the defendant, upon entering a construction contract with the Ford Motor Company, would pay the plaintiff $15,000 and an additional fee of 20% of any profit which was received or extra work performed on a cost-plus basis. There is no direct reference in the letter to an agreement with respect to the Better Living Pavilion. Nor does the language "any other work" relied upon by the plaintiff-respondent raise a reasonable inference that the letter is a memorandum expressing the essential terms of a contract with reference to the Better Living Pavilion as required by the Statute of Frauds (Personal Property Law, § 31, subd. 10 — now General Obligations Law, § 5-701, subd. 10; cf. Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 57; Martocci v. Greater New York Brewery, 301 N.Y. 57). Accordingly the motion to dismiss the first cause of action seeking to recover for services rendered in connection with the contract for the Better Living Pavilion is granted. Similarly the second and fourth causes of action in quantum meruit for a finder's fee are also insufficient in law ( Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521). The order appealed from is accordingly modified to grant the motion to dismiss the first, second and fourth causes of action. As so modified the order is otherwise affirmed, without costs to either party.
Concur — Stevens, J.P., Eager, Steuer and McGivern, JJ.