Koren Rogers Associates Inc. v. Standard Microsystems Corp.

[608] Judgment, Supreme Court, New York County (Paul G. Feinman, J.), entered September 16, 2009, dismissing the complaint, affirmed, with costs. Appeal from order, same court and Justice, entered August 20, 2009, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. In May 2006, defendant entered into a contract with plaintiff which provided that plaintiff would conduct a search to fill the position of “Director, Corporate Accounting” at defendant’s corporation. The fee and billing structure was based on the estimated starting compensation for the director position, which was $150,000 plus a target bonus of $30,000. The contract also included a term clause stating that the search was expected to be completed within four months of the date of the contract and that in the event it was not, defendant could elect to terminate the contract with three business days’ written notice. Defendant interviewed three candidates referred by plaintiff and hired Robert Papa to fill the director, corporate accounting position. Defendant then paid plaintiff the agreed-upon rate of 30% of Papa’s starting compensation. Twenty-two months later, in June 2008, defendant hired Christina Catalina, a candidate whose resume plaintiff had sent defendant for the director position opening. Ms. Catalina was hired for an entirely different position of “Senior Director, Corporate Accounting and Assistant Controller,” and plaintiff did not refer her for this position. The parties do not dispute that Papa was still working as the director, corporate accounting, when Catalina was hired for the senior director position. Plaintiff now seeks to recover a placement fee for the employment of Catalina. “[0]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” (Maysek & Moran v Warburg & Co., 284 AD2d 203, 204 [2001] [internal quotation marks and citation omitted] [where the contract was unambiguous and made no mention of additional job titles, plaintiff was only entitled to compensation for its search for a single position]). The contract here is clear and unambiguous, and the intention of the parties can be gathered from the instrument [609] itself. The contract provided for a placement for the specific position of director, corporate accounting, and did not provide that plaintiff would refer candidates for additional positions, or that defendant would be responsible for paying a fee for any referrals for different positions. Plaintiff performed under the contract by providing defendant with viable candidates, one of whom was hired for the specified position, and defendant, in turn, paid plaintiff the agreed-upon fee. At that point the contract ended. Indeed, the senior director position was not in existence in 2006 when Catalina was originally interviewed. It was not until January 2008 that defendant found the need to create the new position. Catalina and defendant had sporadically corresponded throughout 2007 and 2008, which, according to defendant, is common among professionals in the accounting field. Furthermore, defendant did not engage plaintiff’s services to fill the newly created position. Plaintiff confuses the issue by arguing that Catalina’s hiring for the job of senior director, corporate accounting and assistant controller, was covered by the contract. This job title does not appear anywhere in the contract that was sent to defendant. Although both plaintiff and the dissent point to Macro Group v Swiss Re Life Co. Am. (178 Misc 2d 869 [Civ Ct, NY County 1998]) as instructive, the case is distinguishable. In Macro, two candidates were referred to the defendant/employer and both candidates were offered positions. Notably, the defendant offered to pay the plaintiff an additional fee in the event the second candidate accepted the offer. Thus, the parties had an agreement for the referral and hiring of the second candidate. Such is not the case here. Defendant never discussed the need to fill the newly created position of senior director with plaintiff. In fact, defendant stated that it relied on its own internal resources in conducting the interview process and ultimate hiring. The dissent also relies upon Arrow Empl. Agency v Rice Buick-Pontiac-GMC Truck (185 Misc 2d 811 [App Term, 2d Dept 2000]) and Barrister Referrals v Windels, Marx, Davies & Ives (169 AD2d 622 [1991]), both of which involve different factual scenarios than the one presented here. In Arrow, which is not binding on us, the defendant failed to compensate the plaintiff at all under the employment referral contract. In Barrister, the defendant failed to compensate the plaintiff, and in fact, terminated the contract prior to making any hires. Moreover, the contract in Barrister provided that the plaintiff would receive a finder’s commission for bringing a candidate to the defendant’s attention. However, here the contract signed by the [610] parties provided for payment if plaintiff found a candidate for one specific position, within a specific time frame. Plaintiffs argument that defendant is required to pay a fee for any hire made as a result of plaintiffs sending a resume to defendant could establish an open-ended obligation. Plaintiff could have included provisions in the contract prohibiting defendant from hiring candidates for other positions or requiring defendant to compensate plaintiff for such hiring, but it did not do so, and thus, is not entitled to anything more than it already was paid. Concur — Gonzalez, EJ., Nardelli, Richter and Román, JJ.