Soma Brasil Representacões Comerciais LTDA v JHSF Participacô S.A., 2018 NY Slip Op 08549 [167 AD3d 480]

December 13, 2018

Appellate Division, First Department

[*1]

Soma Brasil Representacões Comerciais LTDA, Plaintiff, and Endeavor Group Realty et al., Appellants-Respondents,

v

JHSF Participacô S.A. et al., Respondents-Appellants.

Law Office Stephen N. Preziosi, P.C., New York (Stephen N. Preziosi of counsel), for appellants-respondents.

Schlam Stone & Dolan LLP, New York (Niall D. O’Murchadha of counsel), for respondents-appellants.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 3, 2016, which granted defendants’ pre-answer motion to dismiss the complaint, unanimously affirmed, with costs.

The motion court properly dismissed the complaint based on the documentary evidence ( see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc. , 120 AD3d 431 , 433 [1st Dept 2014]). At the heart of this appeal is an authorization agreement between Soma and JHSF, which clearly pertained to properties presented to JHSF that were “not listed in real estate companies” as well as the fact that JHSF would determine “in its sole discretion” any right to payment to Soma. The only rational way to construe the authorization is that JHSF was looking for New York unlisted opportunities, and that a fee would be negotiated if JHSF bought one through plaintiffs. Contrary to plaintiffs’ assertion, the motion court did not narrowly construe the documentary evidence when it relied on a New York Post article, dated March 12, 2013, announcing that the owner was selling the property, and the exclusive agency agreement between the owner and another broker, to determine that the subject transaction was public, not private. Concur—Friedman, J.P., Gische, Kapnick, Kahn, Kern, JJ..