CUTAIA v. GI II (2009)

Judgment, Supreme Court, New York County (Richard B. Lowe III, J.), entered September 4, 2008, dismissing the cross claim of defendants-appellants GVA Williams, LLC and Williams Real Estate Co., Inc. against defendants-respondents GI Partners Fund II, L.P. and GI Partners Side Fund, II, L.P. seeking a declaration that, inter alia, they are entitled to a brokers commission from respondents, pursuant to an order that granted respondents' motion to dismiss the cross claim, unanimously affirmed, without costs.

 Dismissal of the cross claim was appropriate where the documentary evidence established that appellants' right to act as exclusive agent in connection with the subletting of the premises or any assignment thereof was not triggered by the transaction in the merger agreement, and thus appellants were not entitled to a commission (see Far Realty Assoc., Inc. v. RKO Del. Corp., 34 A.D.3d 261, 823 N.Y.S.2d 403 [2006] ).   Furthermore, contrary to appellants' contention, there was no basis for permitting discovery based on their conjecture as to the possibility that a third party performed brokerage services (see e.g. Turbel v. Societe Generale, 276 A.D.2d 446, 716 N.Y.S.2d 563 [2000] ).