Gottesman Business Brokers, Inc. v. Goldman Fire Prevention Corp.
Court: Appellate Division of the Supreme Court of the State of New York; April 22, 1997; New York; State Appellate Court
Judgment from the Supreme Court of New York County, presided by Justice Beatrice Shainswit, was entered on January 23, 1996, dismissing the plaintiff broker's complaint for a commission on a business sale. The court reviewed prior orders from August 8, 1994, and December 21, 1995, which referred a factual issue concerning whether the defendant sellers had contact with the buyer during the exclusive brokerage period to a Special Referee. The Special Referee's report favored the defendants, leading to the granting of their summary judgment motion. The court unanimously affirmed this judgment without costs, dismissing the appeal from the prior orders as it was superseded by the appeal from the judgment. The court acknowledged the plaintiff's argument regarding the fact issue but determined it did not pertain to grounds under CPLR 3211(a). The plaintiff waived its right to contest the immediate trial by not seeking reargument or appealing the order directing it until after the Special Referee's adverse findings. The court ruled that the plaintiff could not participate in the hearing without objection and then challenge the outcomes. The claim that the court improperly resolved the issue of whether the plaintiff was the procuring cause of the sale was also dismissed as lacking merit. The decision was concurred by Justices Rosenberger, Rubin, Williams, and Tom.