Klein v. Smigel
| Decision Date | 09 April 1974 |
| Citation | 44 A.D.2d 248,354 N.Y.S.2d 117 |
| Parties | David I. KLEIN, Plaintiff-Respondent, v. Walter A. SMIGEL and Crescent Corset Company, Inc., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Samuel Rubin, New York City, of counsel (Conrad & Smith, New York City), for plaintiff-respondent.
Robert P. Stein, New York City, of counsel (Stroock & Stroock & Lavan, New York City), for defendants-appellants.
Before McGIVERN, P.J., and MARKEWICH, STEUER, and CAPOZZOLI, JJ.
Plaintiff in this action seeks to recover, in Quantum meruit, the sum of $90,000 as a finder's fee for services allegedly rendered in connection with the acquisition of the corporate defendant, Crescent Corset Company, Inc. (Crescent) by NCC Industries, Inc. (NCC). The services allegedly consisted of an introduction of NCC's President, Sol Kittay, to the defendant Smigel.
Plaintiff bases his claim upon an alleged oral agreement, reached at a conference on August 27, 1970, with the individual defendant Smigel, the principal stockholder and chief executive officer of the corporate defendant. Thereafter, on or about March 6, 1971, NCC acquired Crescent for a purchase price of $2,486,718.
In their answer, by way of denial and an affirmative defense, defendants alleged that none of the acts alleged to have been performed by plaintiff contributed to or resulted in, directly or indirectly, the acquisition of Crescent by NCC. As a further affirmative defense, defendants alleged that the complaint was barred by Section 5--701 of the General Obligations Law. On the basis of this latter affirmative defense, defendants moved to dismiss the complaint for insufficiency.
In opposition to the motion, the plaintiff disclosed a letter dated February 15, 1971 written by Smigel to the plaintiff, reading so far as pertinent, as follows:
'I am enclosing, for your convenience, a proposed letter of release. . . .'
The letter of release provided for discharge of Crescent and Smigel as well as NCC. Plaintiff did not sign the letter. Special Term denied the motion, holding this writing sufficient to meet the requirements of the Statute of Frauds. No appeal was taken from this order.
Subsequently, utilizing testimony given by plaintiff in his deposition taken before trial, defendants moved for summary judgment, contending there were no triable issues of fact, and no factual basis to support plaintiff's contention that there was an agreement to pay him compensation for his services. Special Term denied this motion, noting its prior order 'holding that a letter sent by defendant Smigel to plaintiff sufficed as a writing within the statute of frauds', and concluded that whether the alleged services 'were understood to have been performed gratuitously or not is an issue not determinable solely on the papers submitted.'
Defendants appeal from the order (Amsterdam, J., New York County, November 16, 1973) denying them summary judgment.
The determination of the appeal presents a two-fold issue. One, the extent of the restraint arising from the prior order of Special Term, declaring the only writing offered by plaintiff in support of his claim was sufficient to satisfy the Statute of Frauds, and two, the actual sufficiency of the writing to meet the requirements of Section 5--701(10) of the General Obligations Law. We conclude that the prior order dated March 29, 1972, not appealed, denying a motion to dismiss the complaint for insufficiency, constitutes no impediment to an appellate court in the proper and just disposition of the motion on its merits, freed from any procedural stumbling block. Carmody-Wait 2d, Vol. 10, New York Practice, Ch. 70, 70;406.
As was stated in Northville Dock Corporation v. Aller et al., 15 A.D.2d 947, 226 N.Y.S.2d 313, 'A prior...
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Springwell Corp. v. Falcon Drilling Co., Inc.
...expressly referred to therein, and not the particular transaction for which plaintiff now seeks a fee"); Klein v. Smigel, 44 A.D.2d 248, 354 N.Y.S.2d 117 (1st Dep't 1974) (dismissing quantum meruit claim where only writing negated defendant's intention to pay a finder's fee); Karlin v. Avis......
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...court in the proper and just disposition of the motion on its merits, freed from any procedural stumbling block." (Klein v. Smigel, 44 A.D.2d 248, 250, 354 N.Y.S.2d 117, aff'd 36 N.Y.2d 809, 370 N.Y.S.2d 897, 331 N.E.2d 679; see Adelphi Enterprises v. Mirpa, Inc., 33 A.D.2d 1019, 307 N.Y.S.......
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Park Knoll Associates v. Schmidt
...subordinate jurisdiction from which no appeal was taken" (Di Fresco v. Starin, 81 A.D.2d 629, 630, 438 N.Y.S.2d 126; see Klein v. Smigel, 44 A.D.2d 248, 354 N.Y.S.2d 117, affd. 36 N.Y.2d 809, 370 N.Y.S.2d 897, 331 N.E.2d 679; see, also, Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d ......
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Zeising v. Kelly, 99 CV 10542(RCC).
...Frauds, namely, to protect people from alleged contractual obligations not supported by written evidence. See Klein v. Smigel, 44 A.D.2d 248, 354 N.Y.S.2d 117, 120 (1st Dept.1974), aff'd, 36 N.Y.2d 809, 370 N.Y.S.2d 897, 331 N.E.2d 679 (1975). Therefore, the Court must determine whether the......