Sterling Resources Intl., LLC v Leerink Swann, LLC

Sterling Resources Intl., LLC v Leerink Swann, LLC 2012 NY Slip Op 01188 Decided on February 16, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2012
Friedman, J.P., Sweeny, Renwick, DeGrasse, Román, JJ.
6831 602906/09

[*1]Sterling Resources International, LLC, Plaintiff-Appellant,

v

Leerink Swann, LLC, Defendant-Respondent.




Sack & Sack, New York (Jonathan Sack of counsel), for
appellant.
Curley, Hessinger & Johnsrud LLP, New York (Michael A.
Curley of counsel), for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 14, 2010, which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss the first cause of action pursuant to CPLR 3211(a)(1), unanimously modified, on the law, to deny the motion with respect to so much of the first cause of action as seeks $300,000 for finding a Head of Investment Banking, and otherwise affirmed, without costs.

The amended complaint alleges, "Pursuant to the Retainer Agreement, [defendant] retained [plaintiff] to be its exclusive recruiting firm in its search to identify, recruit and hire a Head of its Investment Banking division and other investment banking professionals" (emphasis added). However, the provisions of a contract "prevail over conclusory allegations of the
complaint" (805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451 [1983]). Read as a whole, the Retainer Agreement clearly refers only to the hiring of a Head of Investment Banking (see e.g. Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]; Kass v Kass, 91 NY2d 554, 566 [1998]).

The Retainer Agreement is not ambiguous, because plaintiff's interpretation — that the contract applies to individuals other than a Head of Investment Banking — is not reasonable (see e.g. Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). By contrast, defendant's interpretation — that the Multiple Hires provision of the agreement would apply if defendant ended up hiring co-Heads of Investment Banking — accords with the overall purpose of the contract (see e.g. Kass, 91 NY2d at 567).

Plaintiff may not use extrinsic evidence to create an ambiguity in the Retainer Agreement (see e.g. W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990]).

Although defendant's interpretation of the Retainer Agreement is correct, the first cause of action should not have been dismissed in its entirety. The parties agree that defendant owes plaintiff $450,000 for the Head of Investment Banking whom plaintiff found for defendant and [*2]whom defendant hired. The documentary evidence shows that defendant has paid only $150,000. Therefore, plaintiff has a breach of contract claim for the remaining $300,000.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2012

CLERK