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Miller Tabak + Co. v. Senetek PLC
Citations: 118 A.D.3d 520; 988 N.Y.S.2d 141
Court: Appellate Division of the Supreme Court of the State of New York; June 17, 2014; New York; State Appellate Court
Judgment from the Supreme Court, New York County, vacated a previous award of damages to the plaintiff and dismissed the complaint against the defendant. The court reviewed an order denying the defendant's motion to dismiss and granting the plaintiff's cross motion for summary judgment. The dispute arose from a letter agreement between the parties, where the defendant engaged the plaintiff as an exclusive financial advisor to explore strategic options and potential asset sales. The agreement stipulated that the plaintiff would receive a "transaction fee" if a transaction occurred, defined as a sale, transfer, or other disposition of the defendant's assets. The plaintiff sought this fee in relation to the defendant's unsuccessful attempt to acquire a gold mine through a participation agreement with a hedge fund, which involved purchasing a $5 million interest in notes secured by the mine. The acquisition failed due to the defendant's inability to secure necessary financing, leading to the unwinding of the deal. The court concluded that the plaintiff was not entitled to the transaction fee because the agreement's language required a completed transaction, which did not occur in this instance. The attempted acquisition was neither a sale nor a transfer, and the unwinding of the deal indicated a lack of finality necessary for a "disposition." The court emphasized that the general terms in the engagement letter were limited by the more specific terms defining a transaction. Consequently, the court granted the defendant's motion to dismiss the complaint and denied the plaintiff's cross motion for summary judgment.