Kenneth D. Laub & Co. v. Bear Stearns Companies

Order, Supreme Court, New York County (Charles Ramos, *122J.), entered March 22, 2000, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about October 28, 1999, which, to the extent appealed from, denied plaintiff’s cross motion for reconsideration of an earlier discovery order, unanimously dismissed, as academic, without costs.

The evidence establishes as a matter of law that, in violation of its fiduciary duty, plaintiff broker failed to disclose to defendants, its principals, that it had agreements with third parties to receive commissions in connection with the leasing of two properties, 383 Madison Avenue and 1271 Avenue of the Americas, which plaintiff was proposing that defendants lease (see, Guice v Charles Schwab & Co., 89 NY2d 31, 45, cert denied 520 US 1118). Plaintiff therefore forfeited any right to compensation for its services (see, Murray v Beard, 102 NY 505, 508). Although plaintiff asserts that there is a need for further discovery as to whether it had, in fact, disclosed its third-party commission agreements to defendants, we perceive no reason why plaintiff would not itself be in possession of sufficient proof in regard to this issue so as to raise a triable issue of fact.

Were we to reach the issue of the Statute of Frauds, we would find that the oral agreement, as alleged, was capable of being performed within one year, and therefore it fell outside the statute (see, Cron v Hargro Fabrics, 91 NY2d 362, 366). Concur — Mazzarelli, J. P., Wallach, Rubin and Friedman, JJ.