
    Rule Resources, Ltd., Appellant, v Reliance Group, Incorporated, Respondent.
    Argued March 21, 1980;
    decided April 24, 1980
    
      POINTS OF COUNSEL
    
      Leon B. Lipkin for appellant.
    I. Summary judgment must be denied where issues of fact exist. (Wanger v Zeh, 45 Misc 2d 93; Moskowitz v Garlock, 23 AD2d 943; Esteve v Abad, 271 App Div 725; Callanan Rd. Improvement Co. v Ter-Mel Constr. Corp., 30 AD2d 591; Weiss v Garfield, 21 AD2d 156.) II. The three to two majority’s decision of the court below erred in finding no questions of fact. III. There is a sufficient memorandum to satisfy the Statute of Frauds. (Karlin v Avis, 457 F2d 57; Denny v American Tobacco Co., 308 F Supp 219.) IV. Where a contract is ambiguous and must be construed, a motion for summary judgment will be denied. (Piedmont Hotel Co. v Nettleton Co., 263 NY 25; Stulsaft v Mercer Tube & Mfg. Co., 288 NY 255; Bassett v Bassett, 20 Misc 2d 135; Utica Carting, Stor. & Contr. Co. v World Fire & Mar. Ins. Co., 277 App Div 483; Dowdle v Richards, 2 AD2d 486.) V. All ambiguities should be resolved against defendant. (Todem Homes v Freidus, 84 Misc 2d 1023; Aron v Gillman, 309 NY 157; Ditmars-31’ St. Dev. Corp. v Punia, 17 AD2d 357; Theiler v Trinity Adv. Corp., 241 App Div 34, 265 NY 668.) VI. Summary judgment is improper where intent is an issue. (Rottkamp v Eger, 74 Misc 2d 858; Tobin v Union News Co., 18 AD2d 243, 13 NY2d 1155; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285.) VII. No failure to obtain prior written consent before approaching a third party would bar recovery. (Simon v Electro Space Corp., 32 AD2d 62; Minichiello v Royal Business Funds Corp., 18 NY2d 521; Boro Motors Corp. v Century Motor Sales Corp., 18 Misc 2d 1009, 9 AD2d 894.) VIII. Plaintiff substanially performed its duties under the agreement. (Jacob & Youngs v Kent, 230 NY 239; Homecraft Alterations Corp. v Brill, 10 AD2d 732, 9 NY2d 978; Cramer v Esswein, 220 App Div 10.) IX. Defendant’s motion for summary judgment was made on the eve of trial and should not be entertained by the court. (Jordan v Levy, 16 AD2d 64; Klee v Erie County Water Auth., 72 Misc 2d 31; Ecker v Muzysh, 259 App Div 206; Gunter v Gunter, 28 AD2d 666; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162; Geller v Mahsons Realty Corp., 82 Misc 2d 599; Pollak v Lake Tibet Estates, 19 AD2d 747.)
    
      J. Kelley Nevling, Jr., and Seth A. Davis for respondent.
    I. Plaintiff Rule’s admitted failure to obtain "written consent” to approach Synder Hixon, as required by the agreement sued on, mandates summary judgment for defendant. (Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Minichiello v Royal Business Funds Corp., 18 NY2d 521; Munson v Tilley, 45 AD2d 806; Simonson v First Nat. Bank of Rockville Centre, 231 App Div 868; Boyd v Improved Prop. Holding Co., 135 App Div 623; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Musman v Modern Deb, 56 AD2d 752; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Apache-Beals Corp. v International Adjusters, 59 AD2d 1032, 46 NY2d 888.) II. The undisputed failure of plaintiff Rule to furnish the necessary "Smith Barney release letter” requires summary judgment for defendant. (Laba v Carey, 29 NY2d 302; Hicks v Bush, 10 NY2d 488; Evans Prods. Co. v Decker, 52 AD2d 991; Lane Constr. Corp. v Winona Constr. Corp., 49 AD2d 142.) III. Plaintiff Rule never performed its duty to "procure” a purchaser for disclosure. (Axelrad v 77 Park Ave. Corp., 225 App Div 557.) IV. Plaintiff’s interpretation of the law regarding summary judgment is not supported by the decisions of this court. (Di Sabato v Soffes, 9 AD2d 297; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Hamilton Mut. Realty Fund v Band Realty Co., 41 NY2d 936; Long Is. R. R. Co. v Northville Inds. Corp., 41 NY2d 455; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Spector v Sovereign Constr. Co., 45 AD2d 673; Mobil Oil Corp. v Fraser, 55 AD2d 824.) V. Reliance’s motion for summary judgment, made immediately upon the completion of discovery, was timely and deserved to be considered on its merits. (Jordan v Levy, 16 AD2d 64; Pollak v Lake Tibet Estates, 19 AD2d 747; Klee v Erie County Water Auth., 72 Misc 2d 31; Geller v Mahsons Realty Corp., 82 Misc 2d 599.)
   OPINION OF THE COURT

Per Curiam.

That a motion for summary judgment is made on the eve of trial is not of itself a sufficient reason for denying the motion. Special Term may properly deny such a motion when its merit is not evident and it appears to be made as a dilatory tactic.

When the reason for delay is to complete depositions (cf. CPLR 3212, subd [f]), which as the Appellate Division found was essential to the making of the motion, denial of the motion as untimely is error. Especially is this so when the motion is clearly meritorious, as is the instant motion, for doing so wastes judicial resources which, through ever increasing demands, daily become more precious.

Plaintiffs claim is for a finder’s fee. Defendant argues from the use of the word "procured” in several places in its letter agreement with plaintiff, that plaintiffs employment was as broker to negotiate the sale of defendant’s subsidiary company, Disclosure Incorporated, rather than simply as a finder, but the references are to a sale to a third party procured by plaintiff rather than to a sale procured by plaintiff or of which plaintiff was the procuring cause (cf. 2 NY PJI 934-935). Use of the word "procured” alone would not, therefore, be a sufficient basis for summary judgment (cf. Bradkin v Leverton, 26 NY2d 192, 197).

Here, however, the agreement also contains the provision that "Resources agrees to obtain the prior written consent of Reliance before approaching third parties with respect to a proposed Disclosure Sale. Reliance may withhold its consent in its sole discretion.” Plaintiff claims that it gave defendant the name of the company to which Disclosure was sold before the agreement was entered into and admits that defendant’s consent was then withheld and was never thereafter given. Plaintiff argues, nevertheless, that the agreement cannot be construed to make such consent a condition precedent to liability for a finder’s fee because otherwise defendant, by arbitrarily withholding consent, could avoid paying any commission. Its dilemma is that the quoted provision, signed by it after it knew that consent as to the company which ultimately purchased had been withheld, shows that something other than merely furnishing defendant a name was required before defendant incurred liability, i.e., that plaintiff was required after the date of the agreement to contact the potential purchaser and introduce the parties, if not assist in the negotiations.

When to that provision is added the additional wording of the agreement on which plaintiff also bases its claim — that the commission provided for was to be paid "in complete satisfaction of and as payment for any and all services rendered by Resources on behalf of any and all parties to the Disclosure Sale, whether as finder, broker, originator, consultant or otherwise” — it becomes crystal clear that, whatever the rights and obligations of a finder under the law generally (see Simon v Electrospace Corp., 28 NY2d 136, 141; Knauss v Gottfried Krueger Brewing Co., 142 NY 70; Ames v Ideal Cement Co., 37 Misc 2d 883, 886; Radiation Dynamics v Goldmuntz, 464 F2d 876, 883; Hale v Wolfsen, 276 Cal App 2d 285; Modern Tackle Co. v Bradley Inds., 11 111 App 3d 502; Baldwin v Grymes, 232 Md 470; Davidson v Robie, 345 Mass 333; Equity Benefit Life Ins. Co. v Trent, 566 P2d 449, 453 [Okla]; Amerofina v United States Inds., 232 Pa Super Ct 394, 399-401; 13A Fox and Fox, Business Organizations, Corporate Acquisitions and Mergers, § 30.02; Ann., 24 ALR3d 1160), plaintiff’s obligation under this agreement was to do something more than just give defendant a name.

The lack of merit in plaintiff’s interpretation of the agreement is emphasized by its suggestions that by not requiring consent as to two potential purchasers discussed prior to the date of the letter agreement defendant waived the necessity for consent and that in any event plaintiff has substantially performed. While it may be possible to waive a contract requirement contemporaneously with entry into the contract, the concept of prior waiver is legally anomalous. Indeed, it is plaintiff who must be said by accepting an agreement with the quoted provision in it to have waived whatever rights it may have acquired by simply revealing the name prior to (or at the time of) entry into the agreement.

Of no greater avail to plaintiff is its substantial performance contention. It was to make clear that just such an argument could not be advanced to avoid the Statute of Frauds that paragraph 10 of subdivision a of section 5-701 of the General Obligations Law was amended in 1964 (Bradkin v Leverton, 26 NY2d 192, supra; Minichiello v Royal Business Funds Corp., 18 NY2d 521, 525-527, cert den 389 US 820). But that fact aside, plaintiff’s claim according to its motion papers is only that prior to or at the time it entered into the agreement it mentioned the ultimate purchaser’s name. How that can constitute substantial performance of the consent requirement is not suggested, nor can the court rewrite the agreement of the parties to say that the consent requirement imposed no obligation at all and, therefore, that the agreement was substantially performed by plaintiffs doing nothing after it was entered into.

There being no issue to be decided by a trier of fact, the motion for summary judgment was properly granted. The order of the Appellate Division should, therefore, be affirmed, with costs.

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

Order affirmed.  