CANTOR FITZGERALD CO v. OBVIOHEALTH PTE LTD (2024)

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, 992 N.Y.S.2d 178, 15 N.E.3d 1187 [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, 153 N.Y.S.3d 466 [1st Dept. 2021];  Miron Props., LLC v. Eberli, 126 A.D.3d 479, 2 N.Y.S.3d 791 [1st Dept. 2015], lv denied 26 N.Y.3d 911, 2015 WL 7289445 [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, 153 N.Y.S.3d 466).  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, 986 N.Y.S.2d 92 [1st Dept. 2014] [internal quotation marks omitted]).