Maysek & Moran Inc. v. S.G. Warburg & Co. Inc.

• Decision Date: 19 June 2001
• Citation: 726 N.Y.S.2d 546,284 A.D.2d 203
• Parties: (A.D. 1 Dept. 2001) Maysek & Moran, Inc., Plaintiff-Appellant, v. S.G. Warburg & Co., Inc., et al., Defendants-Respondents. 4514 SUPREME COUT, APPELLATE DIVISION, FIRST DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 546

726 N.Y.S.2d 546 (A.D. 1 Dept. 2001)

Maysek & Moran, Inc., Plaintiff-Appellant, v. S.G. Warburg & Co., Inc., et al., Defendants-Respondents.

4514

SUPREME COUT, APPELLATE DIVISION, FIRST DEPARTMENT

June 19, 2001

Richard J. Flanagan, for plaintiff-appellant,

Elizabeth S. Torkelsen, for defendants-respondents.

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about May 5, 2000, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to compel disclosure, unanimously affirmed, with costs.

"[O]n a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and... circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where... the intention of the parties can be gathered from the instrument itself" (Lake Constr. & Dev. Corp. v. City of New York, 211 A.D.2d 514, 515). The retainer agreement discloses no ambiguity as to the intent of the parties. The agreement unequivocally states that plaintiff was retained to conduct a search for an intermediate-level analyst; no mention is made of a search for a senior analyst or vice-president and absent language indicating that the scope of the contemplated search was to be sufficiently broad to encompass such job titles, the IAS court properly limited plaintiff's entitlement to compensation in accordance with the agreement's express terms.

Plaintiff's claim that defendants frustrated its attempt to perform the agreement was not alleged in its complaint or argued before the IAS court. Thus, it is not preserved for appellate review (see, Cibro Petroleum Prods. v. Chu, 67 N.Y.2d 806, 809). In any event, the record discloses no evidence that defendants terminated the agreement in bad faith.

Plaintiff's claim that the IAS court improperly curtailed discovery is belied by the record. The mere hope that further disclosure might uncover evidence likely to help its case did not provide the IAS court a basis to postpone decision of defendants' summary judgment motion pursuant to CPLR 3212(f) (see, Jones v. Surrey Coop. Apts., Inc., 263 A.D.2d 33, 37).

Sullivan, P.J., Nardelli, Ellerin, Buckley, Marlow, JJ., concur.