Gordon v. Hong , 510 N.Y.S.2d 635 ( 1987 )

—In an action to recover a business broker’s commission, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Durante, J.), dated August 1, 1985, as granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, insofar as appealed from, with costs.

The plaintiffs attempt to rely upon a theory of recovery not previously raised is improper (see, American Indus. Contr. Co. v Travelers Indem. Co., 54 AD2d 679, affd 42 NY2d 1041; Brown v Kimmel, 68 AD2d 896). In any event, the record clearly supports the conclusion that the plaintiff was not the procuring cause of the sale (Greene v Hellman, 51 NY2d 197). Nor was he deprived of the opportunity to earn a commission by the defendant’s conduct (see, Provost v St. Francis Commandery Hall Assn., 118 AD2d 922; cf. Pilger v Ramati, 37 AD2d 581). Thompson, J. P., Brown, Eiber and Kunzeman, JJ., concur.