| Peter Lampack Agency, Inc. v Grimes |
| 2012 NY Slip Op 01576 [93 AD3d 430] |
| March 1, 2012 |
| Appellate Division, First Department |
| Peter Lampack Agency, Inc., Appellant, v Martha Grimeset al., Respondents. |
—[*1] DavidWolfLaw pllc, New York (David B. Wolf of counsel), for Martha Grimes, respondent. Dorsey & Whitney LLP, New York (Jonathan M. Herman of counsel), for Penguin Group(USA) Inc., Penguin Putnam Inc., Viking Penguin, Signet, Onyx and New American Library,respondents.
Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered October 8, 2010and November 1, 2010, which, insofar as appealed from as limited by the briefs, granteddefendant Martha Grimes's motion to dismiss the first through seventh causes of action as againsther, granted defendant Penguin Group (USA) Inc.'s motion to dismiss the first through seventhcauses of action as against it, and denied plaintiff's cross motion for leave to amend thecomplaint, unanimously affirmed, with costs.
The contracts at issue in this case are not ambiguous (see Chimart Assoc. v Paul, 66NY2d 570, 573 [1986]; Bajraktari Mgt.Corp. v American Intl. Group, Inc., 81 AD3d 432 [2011]). It is not reasonable tointerpret the phrase "this Agreement" to include either extensions of the 1999-2003 agreementsor an agreement for the future work mentioned in the 2005 agreement (for the Black Cat). IfGrimes and Penguin had meant to give plaintiff commissions on such extensions and futureagreement, they would have said so, especially since the 2005 agreement had a specific option onnext work clause (see e.g. Reiss v Financial Performance Corp., 97 NY2d 195, 199[2001]).
Interpreting "this Agreement" to mean only the actual contract signed by the parties, notfuture agreements or extensions, is consistent with the doctrine that "[a]n at-will salesrepresentative is entitled to post-discharge commissions only if the parties' agreement expresslyprovided for such compensation" (Swits v New York Sys. Exch., 281 AD2d 833, 835[2001] [internal quotation marks omitted]; see also Scott v Engineering News Publ. Co.,47 App Div 558 [1900]). Under its interpretation of "this Agreement," plaintiff would be entitledto a 15% commission on the Black Cat and on all future extensions of the 1999-2003 contracts,although it had no role in negotiating either. This would be an absurd result (see Scott, 47App Div at 560).[*2]
Plaintiff contends that it was the "procuring cause" of theBlack Cat contract and the extensions of the 1999-2003 agreements. However, the complaintdoes not allege that plaintiff was the procuring cause of that contract or those extensions; itmerely alleges that plaintiff procured the underlying 1999-2005 agreements. Moreover, thedocumentary evidence shows that plaintiff was not the procuring cause of the Black Cat contract;Grimes's new representative was the procuring cause of that contract. In any event, the procuringcause doctrine is inapplicable here. It is "generally applied to real estate transactions and almostexclusively to individual transactions where a broker seeks to recover commissions for a singlesale" (UWC, Inc. v Eagle Indus., 213 AD2d 1009, 1010-1011 [1995], lv denied85 NY2d 812 [1995] [citations omitted]; see also e.g. Devany v Brockway Dev., LLC, 72 AD3d 1008[2010]).
We also find that plaintiff has not pleaded a viable claim for breach of the covenant of goodfaith and fair dealing (see Pappas vTzolis, 87 AD3d 889, 896 [2011]).
The proposed amended complaint fails to state a cause of action for breach of animplied-in-fact contract because there exists an express contract covering the same subject matter(see Julien J. Studley, Inc. v New York News, 70 NY2d 628, 629 [1987]). It fails to statea claim for promissory estoppel because the promise alleged—to pay commissions forextensions of the agreement—is not a legal duty independent of the agreement but arisesout of the agreement itself (seeMatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 842-843[2011]). Concur—Tom, J.P., Friedman, Acosta, DeGrasse and Román, JJ.[Prior Case History: 29 Misc 3d 1208(A), 2010 NY Slip Op 51749(U).]