GOTTESMAN COMPANY v. METRO CREATIVE GRAPHICS INC (2002)

Order, Supreme Court, New York County (Louis York, J.), entered May 21, 2001, which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The action seeks to recover a commission under an “exclusive right to sell” contract, in which plaintiff was retained by defendant's company and its principals for a period of one year “to obtain a sale or merger of the company,” and was to be entitled to a commission “upon the sale or merger of the company in whole or in part arranged by [plaintiff], [defendant's] principal, the company, or any other person or entity.”   Plaintiff's claim herein that it is entitled to a commission by reason of defendant company's sale of its minority interest in another company was opposed by defendants on the ground that the sold stock was merely one of the company's assets, in the same sense as an item of office furniture, and not a portion of itself or of its business, and that the company's corporate structure has at all relevant times remained unchanged.   As plaintiff does not come forward with any evidence to the contrary, and as the agreement in issue was drafted by plaintiff and does not define what constitutes a partial sale or merger of the company, the action was properly dismissed (see, Jacobson v. Sassower, 66 N.Y.2d 991, 993, 499 N.Y.S.2d 381, 489 N.E.2d 1283).