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Cutaia v. GVA Williams

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 19, 2009

RORY CUTAIA, ETC., PLAINTIFF-RESPONDENT
v.
GVA WILLIAMS, LLC, ET AL., DEFENDANTS-APPELLANTS,
GI PARTNERS FUND II, L.P., ET AL., DEFENDANTS-RESPONDENTS.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Saxe, Sweeny, Nardelli, Freedman, JJ.

604215/07

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 AD3d 261 [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 AD2d 446 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090519

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