FITZ-GERALD v. DONALDSON, LUFKIN JENRETTE

The IAS court correctly held that the Statute of Frauds (General Obligations Law § 5-701[a][10]) bars plaintiff's action to recover a finder's fee since there was no written document, signed by defendant, in which defendant agreed to pay such a fee (see, Scheck v. Francis, 26 N.Y.2d 466).

Assuming, arguendo, that a partial performance exception to General Obligations Law § 5-701 still exists after Messner Vetere Berger McNamee Schmettere Euro RSCG Inc. v. Aegis Group PLC ( 93 N.Y.2d 229, n1), plaintiff may not rely upon it because she will not be able to show that her actions were unequivocally referable to the alleged agreement to pay her a finder's fee (see, Anostario v. Vicinanzo, 59 N.Y.2d 662, 664). It is entirely plausible that plaintiff's actions on defendant's behalf were referable to the monthly consulting fee that defendant admittedly paid her (see, id.)

Since General Obligations Law § 5-701(a)(10) applies to "contract[s] implied in fact or in law," it bars plaintiff's quantum meruit claim as well as her breach of contract claim (see, e.g., Wings Assocs. v. Warnaco, Inc., 269 A.D.2d 183, 184, lv denied 95 N.Y.2d 759).

The IAS court properly exercised its discretion in denying plaintiff's request for further discovery pursuant to CPLR 3211(d) (see, e.g., Klein v. Jamor Purveyors, Inc., 108 A.D.2d 344, 350.

We have considered plaintiff's remaining argument and find it unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.