In this action for breach of contract, plaintiff GCP Capital Group LLC (GCP) seeks to recover a brokerage commission for allegedly arranging financing for the purchase of 230 Park Avenue, commonly known as the Helmsley Building. Defendants Monday Property Investments, LLC (MPI) and W2007 Monday Properties Owner, LLC (W2007) (collectively defendants) move for summary judgment dismissing the complaint. Plaintiff cross-moves for partial summary judgment as to liability.

The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once such proof has been offered, to defeat summary judgment "the opposing party must show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b]." [*2](Zuckerman, 49 NY2d at 562.)

Defendants move for summary judgment on the ground that GCP did not satisfy the conditions precedent specified in the parties' agreement for recovery of a commission. In particular, defendants claim that defendant MPI did not close on the subject property; defendant W2007 was not a signatory to the agreement; and GCP did not obtain a commitment for financing.

The parties' agreement was written on the letterhead of "Monday Properties" and was signed on March 6 or 7, 2007 by Matthew Classi, on behalf of GCP, and by Anthony Westreich, as president of MPI. It was addressed to Josh Feldman at GCP. The agreement provided in full:

"The undersigned ("Sponsor") hereby grants you [GCP] the exclusive authority to obtain a commitment from GE Real Estate ("GE") for a preferred equity investment related to the potential acquisition of the Subject Property.

If you obtain a commitment in favor of the Sponsor, subject to the terms and conditions of GE, and the Sponsor successfully closes on the Subject Property, then Sponsor agrees to pay you, in consideration of your services, a commission of 0.50% of the principal face amount of the preferred equity commitment provided by GE (the "Commission").

The Commission shall be earned and payable on the date of the closing of the transaction. In the event of willful default on the part of the Sponsor, the entire fee to GCP Capital Group LLC shall be immediately due and payable.

Sponsor represents that it has the authority to enter into this agreement. This agreement shall be interpreted, construed, and governed by the laws of the State of New York, wherein all negotiations in relation to this contract took place. This agreement shall expire after one year."

(Ex. 1.)^[FN1]

It is undisputed that MPI is an entity of Monday Properties Group, LLC ("Monday Properties"). As testified to by Anthony Westreich, President and owner of MPI, and the principal of Monday Properties, MPI is used to sign contracts to purchase properties but does not itself own any properties. There are "always successor entities to" MPI. (Westreich Dep. at 13-15 [Ex. A].) At least ten limited liability companies, under the umbrella of Monday Properties, hold title to Monday Properties' various real estate interests. (Id. at 6.) Under a Purchase and Sale Agreement, dated March 26, 2007, 230 Park Avenue was sold to W2007 Monday 230 Park JV, LLC (Monday 230 Park JV). (Ex. P.) This entity was a joint venture between a Monday Properties entity known as 230 Park Monday, LLC and a Goldman Sachs/Whitehall Street Global Real Estate Limited Partnership 2007 entity (Goldman Sachs) known as W2007 230 Park, LLC. Monday 230 Park JV was formed for the specific purpose of acquiring 230 Park Avenue. (Westreich Dep. at 67-68; Purchaser's Organizational Chart [Ex. N].) Defendants represent that defendant W 2007 is wholly owned by Monday 230 Park JV. (Ds.' Memo. of Law at 8.) (Defendant W 2007 and Monday 230 Park JV are collectively referred to as W2007.) W 2007 is owned 25 percent by 230 Park Monday, LLC (the Monday entity) and 75 percent by W2007 230 Park, LLC (the Goldman Sachs entity). (Westreich Dep. at [*3]69; Ex. N.)

As defendants point out, MPI was defined in the parties' agreement as the "Sponsor," and did not close on the property. However, purchase of the property by W2007, rather than by MPI, does not bar GCP's claim for a commission. The plain meaning of sponsor is "one who assumes responsibility for some other person or thing." (www.merriam-webster.com.) The agreement thus clearly contemplated that MPI would act for another entity.

Alternatively, if the agreement is found ambiguous based on a conflict between the plain meaning of the word sponsor and the provision of the agreement requiring the sponsor itself to close on the property, parol evidence may be considered. (See generally Greenfield v Phillies Records, Inc., 98 NY2d 562 [2002]; W.W.W. Assocs., Inc. v Giancontieri, 77 NY2d 157 [1990].) The undisputed parol evidence in the record - specifically, MPI's principal's own testimony that MPI never purchased property in its own name - conclusively demonstrates that Monday Properties contemplated that a successor entity would be liable for payment of a commission to GCP if GCP satisfied the other condition precedent, set forth in the agreement, that GCP obtain a commitment from GE for preferred equity financing.

The court holds, however, that although GCP made an initial introduction of Monday Properties to GE, GCP is not entitled to a commission because the commitment for financing was ultimately obtained not by GCP but by a separate entity, Lehman Brothers. In moving for summary judgment, defendants submit the following evidence in this regard, which is not controverted in any respect by plaintiff:

Within several days after GCP and MPI signed their agreement, GCP facilitated a meeting between Monday Properties and the National Sales Lending group of GE's North America Lending division. (Westreich Dep. at 40-41, 55.) After the formation of W2007, by which Goldman Sachs became Monday Properties' equity partner, Goldman Sachs had discussions about financing with GE's Strategic Capital Lending Group. As explained by Alec Burger, President of GE's North America Lending Division, the Strategic Capital and National Sales groups are separate but both work under him. Both groups worked on the negotiations for a deal. (See Burger Dep. at 37-40, 44; GECRE North America Lending Organizational Chart, GEC01117 [Ex. I].) However, the negotiations did not lead to a financing arrangement between GE and Monday Properties or between GE and Goldman Sachs. As of March 28, 2007, it was clear that a deal would not go forward for financing from GE. (e-mail from Skip Wells [GE's Strategic Capital Lending Group] and David Cohen [GE's National Sales Lending Group], dated Mar. 28, 2007, stating:"Goldman ended-up doing the deal with Barclay's and Lehman who were more aggressive on pricing. . .] [Ex. T].)

Throughout the spring of 2007, Monday Properties and Goldman Sachs continued to make independent efforts to obtain equity financing for the purchase of 230 Park Avenue, and were involved in negotiations with both Barclays and Lehman Brothers. Barclays and Lehman Brothers were, in turn, seeking additional investors to purchase a piece of their financing. According to Larry Kravetz, former Managing Director in the Global Commercial Real Estate Finance Group at Lehman Brothers, who worked on the deal, as of August 2007, Barclays and Lehman Brothers had made calls to approximately 40 potential additional investors. One of the [*4]"Lehman Calls" was to GE. (Kravetz Aff., ¶¶ 5-6; Ex. DD [summary of calls].)^[FN2] Barclays ultimately dropped out as an investor.

Representatives of Lehman Brothers initiated negotiations with GE's North America Equity division. (See Kravetz Aff., ¶¶ 6-7.) These negotiations are memorialized in a series of GE in-house e-mails. (See e.g. e-mail from Parsons to Capolongo, dated Sept. 7, 2007, stating that Mark Walsh at Lehman "has a preferred equity deal for us to look at in NYC." [Ex. Y]; e-mail from Hoover to Brook, dated Sept. 13, 2007, also referring to "opportunity" presented by Walsh at Lehman to Parsons [Ex. CC]; e-mail from Capolongo to Hoover, dated Sept. 18, 2007, stating: "Talked to Lehman. Sounds like they have 3-4 interested parties on the senior. 1-2 on the junior. . . . I told them that we expected to get them an answer tomorrow." [Ex. EE];

e-mail from Hoover to Parsons, dated Sept. 19, 2007, stating: "Lehman is looking forward to our response early today." [Ex. EE].) GE's North America Equity division is headed by Joseph Parsons and is a division separate from GE's North America Lending division, headed by Alec Burger. (Burger Dep. at 8-9; Organizational Charts, Ex. I to Ds.' Aff.].) These September 2007 e-mails were not copied to representatives of the National Sales Lending group who had conducted the March 2007 negotiations.

GE, through the North America Equity division, ultimately "agreed to purchase the senior preferred tranche of the preferred equity investment structured by Lehman Brothers and Goldman Sachs. Lehman Brothers, together with Monday Properties and Whitehall, kept the junior preferred piece of the investment." (Kravetz Aff., ¶ 7.) According to Kravetz, "GCP Capital did not participate in []any of the introductions or discussions concerning the preferred equity investment made by Lehman Brothers. Nor did GCP Capital have any role in the preferred equity investment by GE Real Estate that was secured by Lehman Brothers." (Id., ¶ 8.)

In opposing defendants' summary judgment motion, GCP does not dispute that it did not participate in any negotiations with GE after March 2007, and was not involved in the negotiations with GE's North America Equity division, which ultimately resulted in a deal for financing from GE. Nor does GCP dispute that it was through Lehman Brothers' independent introduction to, and negotiations with, GE that GE ultimately made a preferred equity investment in 230 Park Avenue. Notwithstanding the extensive paper trail documenting the deal, which was made available to GCP through discovery, GCP does not point to anything in the documentation showing that, or raising a triable issue as to whether, GCP participated in any respect in the negotiations between Lehman Brothers and GE. On the contrary, GCP simply ignores Lehman Brothers' participation in the acquisition of 230 Park Avenue, either as an investor or as the entity that secured additional financing from GE for the joint venture.

Instead, focusing on Goldman Sachs, GCP contends that Monday Properties frustrated GCP's ability to perform under the agreement, by taking on Goldman Sachs as an equity partner. While GCP's argument is not clearly articulated, it cites emails from March 2007 in which Goldman Sachs directly approached one group (Strategic Capital) within the North America Lending division, notwithstanding that GCP had introduced Monday Properties to a different [*5]group (National Sales Lending) within that division. (P.'s Memo. at 14-19.) As GCP correctly argues, it is well settled that a party may not frustrate a broker's performance and, hence, entitlement to a commission under an agreement, "by bringing about the failure of a condition precedent." (Curtis Props. Corp. v Greif Cos., 212 AD2d 259, 264 [1st Dept 1995] [internal quotation marks and citations omitted].) However, this authority is inapplicable on the undisputed facts of this case. As noted above, as of March 28, 2007, negotiations with the two groups in GE's North America Lending division had failed to result in a deal. This is therefore not a case in which Monday Properties avoided paying a commission by having a separate entity, Goldman Sachs, consummate a deal to which GCP had introduced GE on Monday Properties' behalf, and which Monday Properties had itself been in the process of negotiating.

GCP also argues that by taking Goldman Sachs as an equity partner, GCP"created the impediment to GCP's performance by removing GE as a potential investor in the Property." (P.'s Memo. of Law at 18.) To the extent that GCP's argument is that Monday Properties' exclusive agency agreement with GCP precluded Monday Properties from acting on its own to seek equity financing from other sources (e.g., taking on Goldman Sachs as an equity partner), this argument is wholly unsupported by the terms of the parties' agreement and by governing law. The agreement granted GCP "the exclusive authority to obtain a commitment from GE Real Estate," in favor of Monday Properties, for a preferred equity investment in 230 Park Avenue. It did not by its terms bar Monday Properties from bringing in other equity partners. As GCP's exclusive agency under the agreement was limited to obtaining a commitment from GE, the agreement could not preclude Monday Properties from acting on its own to seek other equity partners or equity financing from other sources. (See generally Carnes Communications, Inc. v Russo, 305 AD2d 332 [1st Dept 2003]; Interactive Props., Inc. v Doyle Dane Bernbach, Inc., 125 AD2d 265, 273 [1st Dept 1986], lv denied, 70 NY2d 613 [1987].) Indeed, given the vast amount of equity financing needed to acquire the property at issue, it was manifest that Monday Properties' search for equity partners would not be limited to GE.

Although GCP does not specifically address Lehman Brothers' role in obtaining financing, GCP further claims, in general, that Monday Properties' exclusive agency agreement with GCP precludes defendants from "successfully arguing that the financing involving GE was obtained by another [entity]." (See P.'s Memo. of Law at 14.) Again, this argument is without any support in the terms of the parties' agreement, which did not prevent other equity partners from seeking additional sources of financing, as occurred here. Having failed to negotiate a limitation precluding Monday Properties' equity partners from approaching GE for financing, GCP cannot prevail on its claim that defendants are liable for a commission on financing independently obtained from GE by Lehman Brothers. (See generally Greenfield, 98 NY2d at 571.)

GCP also argues that the fact that the deal was negotiated with GE's North America Equity division, rather than the North America Lending division to which GCP introduced Monday properties, cannot preclude GCP's recovery of a commission. The court agrees that the parties' agreement provided, without limitation, that GCP would be entitled to a commission if GCP obtained a commitment for a preferred equity investment from "GE Real Estate." However, GCP's argument ignores defendants' undisputed showing that Lehman Brothers, not GCP, was the entity that obtained the commitment from GE. [*6]

The court has considered GCP's remaining contentions and finds them to be without merit. The court accordingly holds that as Lehman Brothers, not GCP, obtained the commitment from GE for financing, defendants are entitled to summary judgment dismissing the complaint.

It is accordingly hereby ORDERED that defendants' motion is granted to the extent of dismissing the complaint with prejudice; and it is further

ORDERED that plaintiff's cross-motion is denied.

This constitutes the decision and order of the court.

Dated: New York, New York

September 14, 2010

________________________

MARCY FRIEDMAN, J.S.C.