Helmsley-Spear, Inc. v. Bigelow Sanford Carpet Co. , 1961 N.Y. Misc. LEXIS 1862 ( 1961 )

Arthur Markewich, J.

Plaintiff moves for summary judgment dismissing the complaint.

In a first cause of action plaintiff counts upon the written brokerage contract, and in the second cause of action plaintiff seeks to recover the value of services rendered. Plaintiff has been engaged as a nonexclusive broker, and the contract provided :

“ This listing is not an exclusive listing with your firm. The property is being listed with a limited number of other brokers. Furthermore, we reserve the right to effect a sale ourselves to any prospective purchaser who comes direct to us.

“We are prepared to pay a commission of 5% of the purchase price to you should a sale and leaseback be consummated through your efforts with a prospect submitted to us by you. There shall be no obligation to pay a commission or any other compensation for your efforts if for any reason the transaction is not consummated by delivery and acceptance of the deed and execution of the lease by both parties.”

In the first cause of action it is alleged that all the financial terms of the sale and leaseback were agreed upon by the purchasers and the defendant, and that the terms of the lease were agreed upon with the exception of several items not related to the financial provisions thereof. The same allegations are made in the opposing affidavit.

Upon the basis thereof, it is'not established as a matter of law that there was in effect a meeting of minds. Apart therefrom, however, the quoted exculpatory clauses preclude recovery upon either cause of action. This was the conclusion reached in Heller & Henretig v. 3620-168th St., Inc. (302 N. Y. 326), where the provision was “ [no commissions were owed] if for any reason whatsoever the contract of sale shall not be executed and delivered as aforesaid.”

No bad faith is urged or proved. Plaintiff’s contention that the exculpatory clause here does not preclude recovery because of the failure to use the word “ whatsoever ” as it was used in Heller {supra) is without merit. That word adds nothing to the words “ for any reason ”. The motion is granted.