| Foundry Capital Sarl v International Value Advisers, LLC |
| 2012 NY Slip Op 05080 [96 AD3d 620] |
| June 21, 2012 |
| Appellate Division, First Department |
| Foundry Capital Sarl, Appellant, v International ValueAdvisers, LLC, Respondent. |
—[*1] Akin Gump Strauss Hauer & Feld LLP, New York (Douglas A. Rappaport of counsel), forrespondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 5, 2011,which granted defendant's motion to dismiss, unanimously affirmed, with costs.
Supreme Court properly granted defendant's motion to dismiss because the written release,which plaintiff executed on November 22, 2010, precludes plaintiff from making the claims setforth in the complaint (see CPLR 3211 [a] [1], [5]). It is clear that the entire purpose ofthe release was for plaintiff to waive its finder's fee in relation to the subject transaction betweendefendant and a nonparty, as consideration to induce defendant to consummate the transaction atthe higher price demanded by the nonparty. Plaintiff's entire duress argument is premised on itsassertion that it would not have waived that fee if it were not under duress. However, plaintiffasserts that a provision in the release, which maintains in effect written agreements between theparties, meant that plaintiff was still entitled to its finders fee. Such a construction would renderthe entire purpose of the release a nullity (see Credit Suisse First Boston v Utrecht-America Fin. Co., 80 AD3d485, 488-489 [2011]; Village of Hamburg v American Ref-Fuel Co. of Niagara, 284AD2d 85, 89 [2001], lv denied 97 NY2d 603 [2001]). Even assuming that the e-mailexchanges between plaintiff and defendant constitute a "written agreement," the onlyconstruction which gives effect to the release, the primary purpose of which was plaintiff's feewaiver, is that the written agreements being maintained between plaintiff and defendant referredto any such agreements other than the fee agreement relating to the subject transaction atthe core of the release.
Also, contrary to plaintiff's contention, there was "no actionable duress" alleged by thecomplaint (Madey v Carman, 51AD3d 985, 987 [2008], lv denied 11 NY3d 708 [2008]; 767 Third Ave. LLC v ORIX CapitalMkts., LLC, 26 AD3d 216 [2006], lv denied 8 NY3d 803 [2007]). Plaintiff'sargument that the release was executed under duress is belied by the fact that nonparty Barclayspaid it a commission for facilitating the transaction, and a party cannot claim that it wascompelled to execute an agreement under duress while simultaneously accepting the benefits ofthe agreement (see Mendel v HenryPhipps Plaza W., Inc., 27 AD3d 375, 376 [2006]). Doing so [*2]is tantamount to ratification (see Philips S. Beach, LLC v ZC Specialty Ins. Co., 55 AD3d 493[2008], lv denied 12 NY3d 713 [2009]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Tom, J.P., Andrias, Friedman, Moskowitz and Renwick, JJ.