Kule Resources, Ltd. v. Reliance Group, Inc.

• Decision Date: 24 April 1980
• Citation: 49 N.Y.2d 587,404 N.E.2d 734,427 N.Y.S.2d 612
• Parties: , 404 N.E.2d 734 KULE RESOURCES, LTD., Appellant, v. RELIANCE GROUP, INCORPORATED, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 612

427 N.Y.S.2d 612

49 N.Y.2d 587, 404 N.E.2d 734

KULE RESOURCES, LTD., Appellant, v. RELIANCE GROUP, INCORPORATED, Respondent.

Court of Appeals of New York.

April 24, 1980.

Leon B. Lipkin, White Plains, for appellant.

J. Kelley Nevling, Jr., and Seth A. Davis, New York City, for respondent.

OPINION OF THE COURT

PER CURIAM.

That a motion for summary judgment is made on the eve of trial is not of itself a sufficient reason for denying the motion. Special Term may properly deny such a motion when its merit is not evident and it appears to be made as a dilatory tactic.

When the reason for delay is to complete depositions (cf. CPLR 3212, subd. (f)), which as the Appellate Division found was essential to the making of the motion, denial of the motion as untimely is error. Especially is this so when the motion is clearly meritorious, as is the instant motion, for doing so wastes judicial resources which, through ever increasing demands, daily become more precious.

Plaintiff's claim is for a finder's fee. Defendant argues from the use of the word "procured" in several places in its letter agreement with plaintiff, that plaintiff's employment was as broker to negotiate the sale of defendant's subsidiary company, Disclosure Incorporated, rather than simply as a finder, but the references are to a sale to a third party procured by plaintiff rather than to a sale procured by plaintiff or of which plaintiff was the procuring cause (cf. 2 N.Y.P.J.I. 934-935). Use of the word "procured" alone would not, therefore, be a sufficient basis for summary judgment (cf. Bradkin v. Leverton, 26 N.Y.2d 192, 197, 309 N.Y.S.2d 192, 257 N.E.2d 643).

Here, however, the agreement also contains the provision that "Resources agrees to obtain the prior written consent of Reliance before approaching third parties with respect to a proposed Disclosure Sale. Reliance may withhold its consent in its sole discretion." Plaintiff claims that it gave defendant the name of the company to which Disclosure was sold before the agreement was entered into and admits that defendant's consent was then withheld and was never thereafter given. Plaintiff argues, nevertheless, that the agreement cannot be construed to make such consent a condition precedent to liability for a finder's fee because otherwise defendant, by arbitrarily withholding consent, could avoid paying any commission. Its dilemma is that the quoted provision, signed by it after it knew that consent as to the company which ultimately purchased had been withheld, shows that something other than merely furnishing defendant a name was required before defendant incurred liability, i. e., that plaintiff was required after the date of the agreement to contact the potential purchaser and introduce the parties, if not assist in the negotiations.

When to that provision is added the additional wording of the agreement on which plaintiff also bases its claim that the commission provided for was to be paid "in complete satisfaction of and as payment for any and all services rendered by Resources on behalf of any and all parties to the Disclosure Sale, whether as finder, broker, originator, consultant or otherwise" it becomes crystal clear that, whatever the rights and obligations of a finder under the law generally (see Simon v. Electrospace Corp., 28 N.Y.2d 136, 141, 320 N.Y.S.2d 225 269 N.E.2d 21; Knauss v. Gottfried Krueger Brewing Co., 142 N.Y. 70, 36 N.E. 867; Ames v. Ideal Cement Co., 37 Misc.2d 883, 886, 235 N.Y.S.2d 622; Radiation Dynamics v. Goldmuntz, 2nd Cir., 464 F.2d 876, 883; Hale v. Wolfsen, 276 Cal.App.2d 285, 81 Cal.Rptr. 23; Modern Tackle Co. v. Bradley Inds., 11 Ill.App.3d 502, 297 N.E.2d...