Sterling Resources International, LLC v. Leerink Swann, LLC

The amended complaint alleges, “Pursuant to the Retainer Agreement, [defendant] retained [plaintiff] to be its exclusive recruiting firm in its search to identify, recruit and hire a Head of its Investment Banking division and other investment banking professionals” (emphasis added). However, the provisions of a contract “prevail over conclusory allegations of the complaint” (805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451 [1983]). Read as a whole, the Retainer Agreement clearly refers only to the hiring of a Head of Investment Banking (see e.g. Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]; Kass v Kass, 91 NY2d 554, 566 [1998]).

The Retainer Agreement is not ambiguous, because plaintiffs interpretation — that the contract applies to individuals other *539than a Head of Investment Banking — is not reasonable (see e.g. Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). By contrast, defendant’s interpretation — that the Multiple Hires provision of the agreement would apply if defendant ended up hiring co-Heads of Investment Banking — accords with the overall purpose of the contract (see e.g. Kass, 91 NY2d at 567).

Plaintiff may not use extrinsic evidence to create an ambiguity in the Retainer Agreement (see e.g. W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 163 [1990]).

Although defendant’s interpretation of the Retainer Agreement is correct, the first cause of action should not have been dismissed in its entirety. The parties agree that defendant owes plaintiff $450,000 for the Head of Investment Banking whom plaintiff found for defendant and whom defendant hired. The documentary evidence shows that defendant has paid only $150,000. Therefore, plaintiff has a breach of contract claim for the remaining $300,000. Concur — Friedman, J.P., Sweeny, Renwick, DeGrasse and Román, JJ.