WINICK REALTY GROUP LLC v. GP (2008)

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered November 30, 2007, which, inter alia, denied defendant Austin & Associates' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.

 The complaint sufficiently sets forth a cause of action for recovery of a share of a real estate brokerage commission pursuant to an alleged oral agreement, at least on the theory that Austin's bad faith conduct prevented plaintiff from becoming the procuring cause of the leasing transaction consummated by the parties' client (see DiStefano v. Rosetti-Falvey Real Estate, 270 A.D.2d 631, 632-633, 704 N.Y.S.2d 344 [2000];  Williams Real Estate Co. v. Viking Penguin, 228 A.D.2d 233, 644 N.Y.S.2d 19 [1996] ).   The documentary evidence submitted by Austin does not conclusively establish a defense to the asserted claims as a matter of law (see Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).   Finally, since plaintiff is entitled to plead inconsistent causes of action in the alternative, the quasi-contractual claims are not precluded by the pleading of a cause of action for breach of an oral agreement.