Opinion
March 1, 1971
Order, Supreme Court, New York County, entered on June 30, 1970, granting plaintiff's motion for leave to serve an amended complaint, unanimously modified on the law and leave to plead the second cause of action contained in the proposed amended complaint denied, without costs and without disbursements, and otherwise affirmed. The second cause of action, as pleaded, does not cure the deficiency pointed out by this court in its prior decision in this case. At that time this court held that "The plaintiff * * * fails to plead a valid agreement with the tenant to pay commissions". ( 34 A.D.2d 754, 755.) Plaintiff has failed to allege, in its present pleading, or in its affidavits, any consideration for the claimed "oral agreement" with the prospective tenant to pay additional commissions. Plaintiff, in its causes of action, maintains the position that it fully performed its agreement with the defendant upon acceptance by the tenant of defendant's terms and conditions on January 31, 1968. Such acceptance by the tenant preceded the alleged "agreement" by the tenant to pay plaintiff additional compensation. Hence, the only consideration to be found in this record is past consideration, which cannot support an alleged oral agreement.
Concur — Stevens, P.J., Capozzoli, Nunez, McNally and Tilzer, JJ.