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

Christopher C. CAREY, d/b/a Christopher C. Carey Associates, Appellant, v. IMPCO ENTERPRISES, INC., Respondent.

Decided: December 31, 1997

Before DENMAN, P.J., and GREEN, CALLAHAN, BALIO and FALLON, JJ. Edward J. Spires, Rochester, for Plaintiff-Appellant. Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP by Shrila Chalifoux, Rochester, for Defendant-Respondent.

Supreme Court properly denied plaintiff's motion for summary judgment.   Defendant entered into an oral agreement with plaintiff to find and place a person to serve as defendant's Director of Information Services.   Defendant contends that plaintiff agreed that he would not be compensated if defendant hired an individual who contacted defendant directly.   Although plaintiff met his initial burden, defendant submitted proof in admissible form raising material issues of fact, including whether the person hired by defendant was found and placed through plaintiff's efforts and whether plaintiff should be deemed to have found and placed that person by posting a notice with a job leave bank and talking by telephone to him when he responded to the notice.   Further factual issues exist concerning the substance of that telephone conversation.  “The parties' conflicting accounts make it clear that there are triable factual questions relating to the contents of the oral contract, * * * plaintiff's performance and defendant's liability, if any” (Linwood Consultants v. Frank Assocs., 161 Misc.2d 546, 549, 614 N.Y.S.2d 863).

Order unanimously affirmed with costs.


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