HERKERT v. TEMCO SERVICES INDUSTRIES INC

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Supreme Court, Appellate Division, First Department, New York.

John HERKERT, Plaintiff-Appellant, v. TEMCO SERVICES INDUSTRIES, INC., Defendant-Respondent.

Decided: May 16, 2000

SULLIVAN, P.J., NARDELLI, TOM, MAZZARELLI and WALLACH, JJ. Caryn Lilling & Kenneth Mauro, for Plaintiff-Appellant. Michael J. Volpe, for Defendant-Respondent.

Order (denominated decision and judgment), Supreme Court, New York County (E. Michael Kavanagh, J.), entered on or about June 23, 1999, which, in an action to recover a commission, granted defendant's motion to set aside the verdict in favor of plaintiff and for judgment as a matter of law in favor of defendant, unanimously affirmed, without costs or disbursements.

 The trial court correctly held that defendant's acquisition of a company that provided the same building maintenance services as defendant was not, as a matter of law, a commissionable event under the parties' agreement.   The interpretation of the contract urged by plaintiff would have defendant paying twice for the same business opportunity, first in the purchase price of the acquisition, and second in paying plaintiff a commission on that purchase.   Such a commission would be in the nature of a finder's fee, for which no provision is made in the parties' agreement, and thus the claim is barred by the Statute of Frauds (General Obligations Law § 5-701[a][10] ).   As the trial court held, it does not avail plaintiff that his efforts to find building maintenance accounts for defendant “may well have been the spark that ignited” the acquisition or that as a result of the acquisition many new building maintenance accounts were transferred to defendant.   Any ruling in the case to the contrary made by another Justice on a pretrial motion for summary judgment is not binding on this Court (see, Tesciuba v. Shapiro, 166 A.D.2d 281, 282, 560 N.Y.S.2d 770, lv. denied, 77 N.Y.2d 803, 568 N.Y.S.2d 15, 569 N.E.2d 874).

MEMORANDUM DECISION.