Ordered that the order is affirmed, insofar as appealed from, with costs.
The plaintiff's attempt to rely upon a theory of recovery not previously raised is improper (see, American Indus. Contr. Co. v Travelers Indem. Co., 54 A.D.2d 679, affd 42 N.Y.2d 1041; Brown v Kimmel, 68 A.D.2d 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 N.Y.2d 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 A.D.2d 922; cf. Pilger v. Ramati, 37 A.D.2d 581). Thompson, J.P., Brown, Eiber and Kunzeman, JJ., concur.