ESTATE OF JAMES BROWN v. PULLMAN GROUP

The court properly accorded the unambiguous engagement letter its plain and ordinary meaning ( see Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 521; Finger-lakes Chiropractic v Maggio, 269 AD2d 790, 792) in interpreting its paragraph 7 as applying only to consummated transactions, sales and financing, and not prohibiting Plaintiff's from negotiating on their own for refinancing. It is unnecessary to determine whether the rule governing a broker's exclusive right of sale would be applicable to the relationship between the parties; defendant's claim for breach of contract was properly rejected because it not only did nothing to procure Plaintiffs' proposed loan with a third party, but frustrated that deal by sending a threatening letter ( see Ellenberg Morgan Corp. v Hard Rock Cafe Assoc., 116 AD2d 266, 271). The counterclaim for declaratory relief did not present a justiciable controversy ( see American Std., Inc. v Oakfabco, Inc., 58 AD3d 485), inasmuch as Plaintiffs' proposed loan from a third party did not go forward, and was not about to do so ( cf. Buller v Goldberg, 40 AD3d 333).

Denial of renewal was proper because this evidence was available at the time of the initial motion, and the failure to submit it was unexplained ( see Matter of Weinberg, 132 AD2d 190, 210, lv dismissed 71 NY2d 994). In any event, the purportedly new evidence would not have altered the initial determination ( see NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc. Inc., 44 AD3d 576, appeal dismissed 10 NY3d 757, cert denied 555 US ___, 129 S Ct 458). Leave to amend was properly denied since the counterclaims had already been dismissed. We further note that the proposed amendment was unsupported by an affidavit of merit ( see Schulte Roth Zabel, LLP v Kassover, 28 AD3d 404) or a verified pleading (CPLR 105 [u]).

[ See 2008 NY Slip Op 31043(U).]