Thomas P. Reilly & Co. v. Rockefeller Center Management Corp.

223 A.D.2d 477, 637 N.Y.S.2d 371, 1996 N.Y. App. Div. LEXIS 517

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered November 22, 1994, dismissing the complaint, and bringing up for review an order, same court and Justice, entered November 15, 1994, which granted defendants’ motion for summary judgment, unanimously affirmed, with costs.

A broker seeking a commission for an executed lease must establish that he was the procuring cause of the lease, and the broker does not earn the commission simply because he initially called the property to the attention of the tenant (Laub & Co. v 101 Park Ave. Assocs., 162 AD2d 294, 295-296). It is incumbent upon the opponent of summary judgment to present evidentiary proof sufficient to raise a triable issue of fact (supra, at 295). Here, plaintiff merely demonstrated that 15 months prior to the execution of a lease, it introduced the tenant to the possibility of renting space at Rockefeller Center. There followed no negotiations for a lease and, in fact, no interest by the ultimate tenant in that area until defendant broker specifically negotiated a lease on behalf of the tenant. Accordingly, defendant broker is clearly the procuring cause of the lease and plaintiff is entitled to no commission (see, supra, at 296, distinguishing Brown, Harris, Stevens v Rosenberg, 156 AD2d 249 ["issue of fact as to whether broker was procuring cause where it showed property to purchaser four times, obtained plans, financial information and comparable values for purchaser, appraised the apartment for seller and kept in contact with parties”]).

Plaintiff’s request to conduct discovery in order to attempt to elicit facts sufficient to oppose summary judgment is unavailing. The documents sought would not aid plaintiff in establishing it as the procuring cause of the lease.

Finally, plaintiff having no right to a commission, defendant broker may not be found liable for tortiously interfering with that right. Concur—Murphy, P. J., Sullivan, Wallach, Kupferman and Ross, JJ.