| Nemeroff v Coby Group |
| 2008 NY Slip Op 07167 [54 AD3d 649] |
| September 30, 2008 |
| Appellate Division, First Department |
| Andrew Nemeroff, Respondent, v The Coby Group et al.,Appellants. |
—[*1] Seyfarth Shaw LLP, New York (David M. Monachino of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered March 10,2008, which, upon reargument, adhered to a prior order denying defendants' motion for summaryjudgment dismissing plaintiff's causes of action for quantum meruit and unjust enrichment, andvacated that portion of the prior order that rejected plaintiff's claim that he was entitled to afinder's fee, unanimously reversed, on the law, with costs, the motion granted and said causes ofaction and claim dismissed. Appeal from the prior order, same court and Justice, entered April 5,2007, unanimously dismissed, without costs, as superseded by the appeal from the later order.
Plaintiff, a licensed real estate broker, contends that a transaction in which defendants"flipped" property for a profit of $15 million would not have happened but for the involvement ofnonparties Alex Adjmi and Robert Cayre whom he brought into the transaction through his roleas a broker or finder. Despite numerous allegations in plaintiff's appellate brief and before themotion court, there is no evidence of record that supports plaintiff's position that the transactionwould not have happened without Adjmi and Cayre, or that Adjmi and Cayre would not haveparticipated in the transaction but for plaintiff's introducing them to defendants. Similarly, thereis no evidence that defendants consciously appropriated plaintiff's services, that plaintiffreasonably expected to be compensated therefor, or that defendants recognized the value of theservices (see Curtis Props. Corp. v Greif Cos., 212 AD2d 259, 266-267 [1995]). There isalso no evidence to support the cause of action for unjust enrichment: namely, that plaintiffhelped lay the "groundwork" for the transaction and that the services he provided were"instrumental to the realization of [defendants'] gain" (Galbreath Riverbank v Sheft &Sheft, 273 AD2d 35, 36 [2000]; seealso Korff v Corbett, 18 AD3d 248, 251 [2005]). As to plaintiff's claim of entitlement toa finder's fee, there is no evidence that the services he performed at defendants' behest wereproximately linked to the consummated "flip" (see Gregory v Universal Certificate Group LLC, 32 AD3d 777,778-779 [2006]; see also Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158,162-163 [1993]). Indeed, there is no evidence that plaintiff had anything at all to do with the"flip" of the property.
It is black letter law in this Department that plaintiff cannot avoid summary judgment byoffering "self-serving affidavits" that have been "tailored to avoid the consequences of [his] [*2]earlier testimony" (Phillips v Bronx Lebanon Hosp., 268AD2d 318, 320 [2000]). The verified complaint and plaintiff's deposition testimony make plainthat plaintiff was only entitled to earn a fee if he successfully procured financing and defendantsclosed on the property in question. It is beyond dispute that plaintiff never obtained financing andthat defendant Coby did not purchase the Florida property. The record is clear that Cobycompleted the "flip" of the property to MCZ Centrum without obtaining any financing. Plaintiff'scontinued reference to an "industry practice" of compensating a broker merely because the brokerwas engaged to perform a particular service is also unsupported by any citation to authority or therecord.
The "Draft Preliminary Sheet" from Aareal Bank that plaintiff claims supports his positionthat he had procured financing instead directly rebuts his argument. It simply is not a "finalversion" of any term sheet evidencing financing, and indeed the record demonstrates that nofinancing ever took place. Plaintiff's claim in quantum meruit also fails because he proffered noproof as to either the work he actually performed or a "reasonable value" for those allegedservices (Soumayah v Minnelli, 41AD3d 390, 391 [2007]; Geraldi v Melamid, 212 AD2d 575, 576 [1995]).Concur—Tom, J.P., Saxe, Friedman, Buckley and Catterson, JJ. [See 2008 NYSlip Op 30660(U).]