Bomser v. Moyle

• Decision Date: 26 October 1982
• Citation: 455 N.Y.S.2d 12,89 A.D.2d 202
• Parties: Alan H. BOMSER, Plaintiff-Appellant, v. Allan MOYLE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 12

455 N.Y.S.2d 12

89 A.D.2d 202

Alan H. BOMSER, Plaintiff-Appellant, v. Allan MOYLE, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Oct. 26, 1982.

Ellen G. Zindler, New York City, of counsel (Swetnick, Rosenblum & Zindler, New York City, attorneys), for plaintiff-appellant.

Daniel J. Kornstein, New York City, of counsel (Kornstein, Meister & Veisz, New York City, attorneys), for defendant-respondent.

Before MURPHY, P.J., and KUPFERMAN, MARKEWICH and LYNCH, JJ.

PER CURIAM.

The appeal from the order dismissing the original complaint must be dismissed as moot since an amended complaint was served. Nonetheless, for purposes of background, a brief discussion will be had of that original complaint.

In the original complaint, plaintiff Bomser sought to recover from defendant Moyle upon a written finder's agreement. It was the plaintiff's contention that an "undated document" sent to him by the defendant constituted a written agreement. However, Special Term correctly found that this unsigned document did not reflect any assent by the parties to a written agreement. The court also correctly recognized that the plaintiff, an attorney, could prove an oral finder's agreement because he was not precluded from doing so under General Obligations Law § 5-701 subd. a, par. 10 (Harris v. Sobel, 31 A.D.2d 529, 295 N.Y.S.2d 181; Seligman v. Exquisite Form Industries, Inc., 33 A.D.2d 550, 304 N.Y.S.2d 567). Special Term dismissed the original complaint without prejudice to the plaintiff's right to serve an amended complaint.

The amended complaint contains four causes of action. The four causes are drafted in very cursory terms; they depend for their vitality upon ten introductory paragraphs. In those introductory paragraphs, plaintiff essentially alleges that the defendant sought financing for the production of a film. He further alleges that, through his efforts, the defendant was introduced to one Jacob Brackman. Plaintiff also avers that the defendant and Brackman made a "deal" and that Brackman provided the majority of the funding for the film. As a result of that funding the film was produced and the defendant received substantial net revenues therefrom.

Paragraphs 4 and 5 are crucial to the viability of the complaint; they read as follows:

"... 4. At this February 5, 1979 meeting, Bomser offered to introduce Moyle to such a producer in exchange for a finders' fee for any introduction made by Bomser which initiated a deal resulting in Moyle's obtaining a majority of the funds necessary for the successful completion of the Film. Moyle accepted the offer and promised to send to Bomser a document reflecting said agreement.

5. Subsequent to the February 5, 1979 meeting Moyle delivered to Bomser the document annexed hereto as Exhibit 'A'.

On a motion to dismiss a complaint for legal insufficiency, we accept the facts alleged as true and determine simply whether the facts alleged fit within any cognizable legal theory (Morone v. Morone, 50 N.Y.2d 481, 485, 429 N.Y.S.2d 582, 413 N.E.2d 1154). When a claim is founded upon a contract, the relevant portions of the contract should be set forth in the complaint (Shields v. School of Law, 77 A.D.2d 867, 868, 431 N.Y.S.2d 60; Berdych v. Bell Aerospace Corporation, 19 A.D.2d 582, 240 N.Y.S.2d 448).

Viewing paragraph 4 most favorably to the plaintiff, it alleges that the parties entered into an oral agreement. The parties may have intended to be bound by that oral agreement even though a written agreement was never executed (21 N Y Jur 2d, Contracts, § 33, p. 449). As was mentioned above, the "undated document" (Exhibit A), prepared by the defendant, did not rise to the level of a written agreement. The plaintiff, however, stated in his affidavit upon the original motion, that the parties' agreement was embodied in that "undated document".

At a trial of this action, the plaintiff may be able to introduce the "undated document" into evidence as some proof of the parties' oral agreement. A problem arises on this appeal from the fact that the "undated document" contains more provisions than those set forth in the introductory paragraphs of the amended complaint. The "undated document" states, inter alia, that plaintiff will (i) receive 5 percent of the film's net revenues, as defined therein, (ii) not receive any fees for his services, (iii) not be required to represent defendant beyond the initial introduction if he so chooses, and (iv) take half of his share under specified circumstances.

The amended complaint refers to the "undated document" but it does not indicate whether any or all of the provisions in that document are being absorbed into the parties' oral agreement. Because of this ambiguity and indefiniteness in the amended complaint, as to the full scope of the...