| Cutaia v GVA Williams, LLC |
| 2009 NY Slip Op 03939 [62 AD3d 533] |
| May 19, 2009 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Rory Cutaia, Individually and as Duly Appointed Representative of
the Former Shareholders of The Telx Group, Inc., Respondent, v GVA Williams, LLC, et al., Appellants, and GI Partners Fund II, L.P., et al., Respondents. |
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O'Shea Partners LLP, New York (Jonathan Altschuler of counsel), for Rory Cutaia,
respondent.
Paul Hastings Janofsky & Walker LLP, New York (Gerald J. Fields of counsel), for GI
Partners Fund II, L.P. and GI Partners Side Fund II, L.P., respondents.
Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered September 4, 2008, dismissing the cross claim of defendants-appellants GVA Williams, LLC and Williams Real Estate Co., Inc. against defendants-respondents GI Partners Fund II, L.P. and GI Partners Side Fund II, L.P. seeking a declaration that, inter alia, they are entitled to a brokers commission from respondents, pursuant to an order that granted respondents' motion to dismiss the cross claim, unanimously affirmed, without costs.
Dismissal of the cross claim was appropriate where the documentary evidence established that appellants' right to act as exclusive agent in connection with the subletting of the premises or any assignment thereof was not triggered by the transaction in the merger agreement, and thus appellants were not entitled to a commission (see Far Realty Assoc. Inc. v RKO Del. Corp., 34 AD3d 261 [2006]). Furthermore, contrary to appellants' contention, there was no basis for [*2]permitting discovery based on their conjecture as to the possibility that a third party performed brokerage services (see e.g. Turbel v Societe Generale, 276 AD2d 446 [2000]). Concur—Andrias, J.P., Saxe, Sweeny, Nardelli and Freedman, JJ. [See 2008 NY Slip Op 32393(U).]