| Winick Realty Group LLC v Austin & Assoc. |
| 2008 NY Slip Op 04130 [51 AD3d 408] |
| May 1, 2008 |
| Appellate Division, First Department |
| Winick Realty Group LLC, Respondent, v Austin &Associates, Appellant, et al., Defendants. |
—[*1] Bingham McCutchen LLP, New York (Ted Poretz of counsel), for respondent.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered November 30,2007, which, inter alia, denied defendant Austin & Associates' motion to dismiss the complaintpursuant to CPLR 3211 (a) (1) and (7), unanimously affirmed, with costs.
The complaint sufficiently sets forth a cause of action for recovery of a share of a real estatebrokerage commission pursuant to an alleged oral agreement, at least on the theory that Austin'sbad faith conduct prevented plaintiff from becoming the procuring cause of the leasingtransaction consummated by the parties' client (see Di Stefano v Rosetti-Falvey RealEstate, 270 AD2d 631, 632-633 [2000]; Williams Real Estate Co. v Viking Penguin,228 AD2d 233 [1996]). The documentary evidence submitted by Austin does not conclusivelyestablish a defense to the asserted claims as a matter of law (see Leon v Martinez, 84NY2d 83 [1994]). Finally, since plaintiff is entitled to plead inconsistent causes of action in thealternative, the quasi-contractual claims are not precluded by the pleading of a cause of action forbreach of an oral agreement. Concur—Lippman, P.J., Friedman, Gonzalez and Moskowitz,JJ. [See 17 Misc 3d 1134(A), 2007 NY Slip Op 52251(U).]