Industrial & Commercial Realty Associates Co. v. Great Atlantic & Pacific Tea Co.

60 A.D.2d 527, 399 N.Y.S.2d 691, 1977 N.Y. App. Div. LEXIS 14426

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1977
• Status: Published

Opinion

Order, Supreme Court, New York County, entered June 2, 1977, denying defendant-appellant’s motion to dismiss the amended complaint for insufficiency, unanimously reversed, on the law, defendant’s motion is granted, and the amended complaint dismissed, without costs and without disbursements, without prejudice to an application at Special Term, if plaintiff is so advised, for leave to replead. In this action by a real estate broker to recover on a claim for a "finder’s fee” defendant’s motion to dismiss was denied on the ground that "A licensed real estate broker is not barred from maintaining a lawsuit to recover a finder’s fee, where, in fact, he has entered into a special contract to act solely as a finder” (emphasis supplied). Had plaintiff so pleaded, the observation would have been correct. However, there is nothing in the complaint to distinguish the transaction at bar from an ordinary brokerage arrangement, nor is there anything contained therein which indicates plaintiff was engaged to act solely as a finder. Moreover, plaintiff seeks recovery in quantum meruit on an implied promise. Yet, to recover as a finder plaintiff-broker must establish an express "special contract” to act in that capacity, and the terms thereof. (Day v Dworman, 18 AD2d 989.) There is nothing to indicate such an express contract. Although the pleading is insufficient to establish that plaintiff is entitled to a finder’s fee, it may possibly possess facts which, properly pleaded, would entitle it to compensation. Accordingly, this disposition is without prejudice to an application at Special Term for leave to replead. Concur—Kupferman, J. P., Capozzoli, Lane and Markewich, JJ.