
    Priscilla R. Haskins, Appellant, v Loeb Rhoades & Co., Respondent.
    Argued March 24, 1981;
    decided April 28, 1981
    POINTS OF COUNSEL
    
      Benedict Ginsberg and Milton B. Franklin for appellant.
    I. Assuming the causes of action alleged in the complaint prima facie are barred by section 5-701 (subd a, par 10) of the General Obligations Law, defendant waived that defense by its pretrial sworn admissions that it was liable to plaintiff for her special services referred to in the complaint and had tendered to her the amount if considered appropriate for such services. II. To permit defendant to bar plaintiff from recovering moneys owing to her in connection with the transaction referred to in the complaint, because of section 5-701 of the General Obligations Law, would allow that statute to perpetrate a fraud. Such result is not countenanced under New York law. III. Plaintiff’s action as a cofinder of a business opportunity against defendant as the other finder of that opportunity who received a commission of at least $250,000 from the principal in that transaction, based on defendant’s promise to share that fee with plaintiff, does not come under the ambit of section 45-701 of the General Obligations Law. (Dura v Walker, Hart & Co., 27 NY2d 346.) IV. Assuming arguendo that section 5-701 of the General Obligations Law is applicable to the situation at bar, there are sufficient writings by defendant, to take the contract out of the operation of the statute. (Marks v Cowdin, 226 NY 138.) V. The record establishes a number of material issues which jointly or severally require denial of summary judgment dismissing plaintiff’s complaint.
    
      Thomas J. Kavaler and John R. Vaughan for respondent.
    I. Both courts below correctly held that plaintiff’s claims are barred by the Statute of Frauds. (Chase & Co. v White, Weld & Co., 311 F Supp 1253; Weisner v Benenson, 275 App Div 324, 300 NY 669; Seif v Cantor, Fitzgerald & Co., 40 AD2d 655; Dura v Walker, Hart & Co., 27 NY2d 346; Smith v Muss, 203 Misc 356, 281 App Div 957; Champlin v Parish, 11 Paige Ch 405; Cozine v Graham, 2 Paige Ch 177; Harris v Knickerbacker, 5 Wend 638; Cameron v Tompkins, 72 Hun 113; Marshall v Ferris, 65 Misc 2d 405.) II. Both courts below correctly granted summary judgment because defendant demonstrated its clear right to such relief and plaintiff failed to demonstrate the existence of a genuine issue of material fact. (Zuckerman v City of New York, 49 NY2d 557; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; De Fren v Russell, 71 AD2d 416.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff’s claim that she is entitled to recover a fee for her assistance in the negotiation of a business opportunity is barred by the express terms of section 5-701 (subd a, par 10) of the General Obligations Law. That statute requires that any claim for a so-called “finder’s fee” be based upon a writing duly subscribed. Inasmuch as plaintiff is unable to prove subscription, she is statutorily precluded from recovery as a “finder” upon any express or implied agreement to pay her for her services as such.

Nor can it be said that defendant waived the protection of the statute by admitting that it had discussed the possibility of “special compensation” with plaintiff. Such an admission at most bespeaks an intention to give an employee a special award for her services and can in no way be viewed as inconsistent with defendant’s reliance upon the Statute of Frauds to protect it from plaintiff’s claim that it had entered into an independent agreement to accept plaintiff’s services as a “finder”. Hence, we do not reach and thus do not consider plaintiff’s contention that an oral admission of the existence of the alleged contract, in the course of judicial proceedings or otherwise, would operate to take the case out of the Statute of Frauds.

Finally, we find no merit in plaintiff’s contention that she was a “co-finder” with her former employer. While it is true that when two brokers or finders decide to “pool their efforts and share the benefits”, the agreement to share in the profits of the joint enterprise need not necessarily be in writing (Dura v Walker, Hart & Co., 27 NY2d 346, 350), this narrow exception to the Statute of Frauds applies only to a business enterprise “closely akin to that of joint venture”. Here, as Special Term correctly pointed out, plaintiff has come forward with no evidentiary facts which indicate the existence of any enterprise even remotely resembling a joint venture. Thus, summary judgment was properly granted to defendant and plaintiff’s claim, insofar as it was based upon the theory that she was a “co-finder”, was properly dismissed.

We have examined plaintiff’s remaining contentions and have found them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order affirmed.  