Stanton v. Power

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about August 26, 1997, which, to the extent appealed as limited by plaintiff’s brief, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Since, under the parties’ agreement, defendants’ duty to pay plaintiff was expressly conditioned upon plaintiff’s written presentation of potential merger candidates, and plaintiff failed, in responding to defendants’ summary judgment motion, to adduce any evidence that that condition had been satisfied, the motion court properly found plaintiff’s recovery of a finder’s fee pursuant to the agreement precluded as a matter of law (see, Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685). Since this case involves an express condition precedent to defendants’ payment obligation, we perceive no basis upon which the doctrine of substantial performance might be invoked (see, supra, at 692). Concur — Nardelli, J. P., Wallach, Tom and Andrias, JJ.