Winick Realty Group LLC v. Austin & Associates

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered November 30, 2007, which, inter alia, denied defendant Austin & Associates’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), unanimously affirmed, with costs. The complaint sufficiently sets forth a cause of action for recovery of a share of a real estate brokerage commission pursuant to an alleged oral agreement, at least on the theory that Austin’s bad faith conduct prevented plaintiff from becoming the procuring cause of the leasing transaction consummated by the parties’ client (see Di Stefano v Rosetti-Falvey Real Estate, 270 AD2d 631, 632-633 [2000]; Williams Real Estate Co. v Viking Penguin, 228 AD2d 233 [1996]). The documentary evidence submitted by Austin does not conclusively establish a defense to the asserted claims as a matter of law (see Leon v Martinez, 84 NY2d 83 [1994]). Finally, since plaintiff is entitled to plead inconsistent causes of action in the alternative, the quasi-contractual claims are not precluded by the pleading of a cause of action for breach of an oral agreement. Concur—Lippman, P.J., Friedman, Gonzalez and Moskowitz, JJ. [See 17 Misc 3d 1134(A), 2007 NY Slip Op 52251(U).]