Simpson v Nassau Diagnostic Mgt. Corp.
Annotate this CaseDecided on January 4, 2005
Supreme Court, Suffolk County
David E. Simpson, Plaintiff,
against
Nassau Diagnostic Management Corp., ERNEST A. WINKLE AND LEONARDA WINKLE, Defendants.
4826-04
LAW OFFICES OF DAVID A. STOLL
Attorney for Plaintiff
16 Cove Neck Lane
Southampton, New York 11968
DARRELL J. CONWAY, P.C.
Attorney for Defendants
8 Little East Neck Road, Suite 206
Babylon, New York 11702-2545
Elizabeth Hazlitt Emerson, J.
ORDERED that the motion by the plaintiff for an order granting summary judgment in his favor is denied; and it is further
ORDERED that the cross motion by the defendants for an order granting summary judgment in their favor is granted as to the plaintiff's third cause of action; and it is further
ORDERED that the cross motion is otherwise denied.
On April 1, 2001, the defendants Ernest and Leonarda Winkle executed a written agreement with Michael P. Forbes in which they agreed to sell the assets and business of the defendant Nassau Diagnostic Management Corp. to Forbes. On April 10, 2001, the Winkles executed a written agreement with the plaintiff which provided that, if Forbes and his affiliates acquired the controlling stock or the assets and business of the defendant Nassau Diagnostic Management Corp., which was owned by the defendant Nadine Winkle, then the plaintiff would be
Index No.: 4826-04
Page 2
paid a finder's fee in the amount of 7.5% of the value of the consideration received from Forbes and his affiliates. The second agreement was for a term of one year "from the date hereof unless active negotiations are continuing at such date," in which case the agreement was to continue in effect during such further negotiations. On January 28, 2002, the Winkles' agreement with Forbes was terminated, and the plaintiff continued to solicit other potential purchasers. On April 10, 2002, Forbes offered to purchase the defendant Nassau Diagnostic Management Corp. from the Winkles for $1.1 million. On June 14, 2002, the defendants and Forbes, as the President of Medical Diagnostics of America, LLC, executed an asset purchase agreement and bill of sale. The plaintiff subsequently learned of the sale and commenced this action to recover damages for breach of contract and fraud.
For the movant to prevail on a motion for summary judgment it must clearly appear that no material and triable issue of fact is presented (see, Di Menna & Sons v City of New York, 301 NY 118). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (see, Braun v Carey, 280 AD 1019) or where the issue is "arguable" (see, Barrett v Jacobs, 255 NY 520); "issue-finding, rather than issue-determination, is the key to the procedure" (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, citing to Esteve v Abad, 271 AD 725). Here, there is a question of fact on the issue of whether the Winkles and Forbes were engaged in active negotiations between April 10, 2002, and June 14, 2002. Accordingly, summary judgment is denied as to the plaintiff's first and second causes [*2]of action and the defendants' counterclaim.
The plaintiff's third cause of action sounds in fraud. However, the fraud alleged is based on the same facts as underlie the contract claim, is not collateral to the contract, and no damages are alleged that would not be recoverable under a contract measure of damages (see, J.E. Morgan Knitting Mills v Reeves Bros., 243 AD2d 422). Under these circumstances, the plaintiff's third cause of action is dismissed.
DATED: January 4, 2005
J. S.C.
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