Berney
v.
Hammerstein

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTSNov 17, 2011
2011 N.Y. Slip Op. 52137 (N.Y. App. Div. 2011)

2010-2244 Q C

11-17-2011

Elizabeth Berney, Respondent, v. Gabriele Hammerstein, Appellant.


PRESENT: : , J.P., PESCE and WESTON, JJ

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered September 15, 2009. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $30,000.

ORDERED that the judgment is affirmed, without costs.

In this action, transferred to the Civil Court from the Supreme Court pursuant to CPLR 325 (d), to recover a finder's fee based on a contract to procure a buyer for a sale of real property, defendant appeals from a judgment, after a nonjury trial, in favor of plaintiff in the principal sum of $30,000.

Contrary to defendant's contention, the statute of frauds has no application to the instant case as plaintiff is an attorney at law (see General Obligations Law § 5-701 [a] [10]; Hunter v Greene, 734 F2d 896 [2d Cir 1984]; see also Rever v Kayser-Roth, 26 NY2d 652 [1970]; Taussig v The Clipper Group, L.P., 16 AD3d 224 [2005]). In any event, the evidence presented at trial suggested that the parties had executed a written agreement concerning the finder's fee, which was no longer available. In light of plaintiff's sufficient explanation of the unavailability of the primary evidence, it was within the Civil Court's discretion to allow the draft of the contract into evidence under a well-recognized exception to the best evidence rule (CPLR 4539), and to consider it, along with plaintiff's testimony and several other writings, as proof of the contents of the finder's fee contract agreement (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 644 [1994]; Kliamovich v Kliamovich, 85 AD3d 867 [2011]).

The evidence adduced at trial supports the Civil Court's findings that defendant expressly agreed to pay plaintiff a finder's fee if a buyer was found by her efforts, and that plaintiff did in fact introduce defendant to the principal of the ultimate purchaser of defendant's property (see Stiefvater Real Estate v Himbaugh, 42 AD3d 525, 526 [2007]). Furthermore, we discern no basis to disturb the Civil Court's credibility determinations.

The lawyer-client business transactions disciplinary rule (see Code of Professional Responsibility DR 5-104 [A] [22 NYCRR 1200.23 (a)]), as it existed at the time the parties executed the finder's fee agreement, is inapplicable, as plaintiff's role in the sale of the property was limited to that of a finder, rather than a fiduciary; in fact, defendant was represented by her long-time real estate attorney for the purpose of that transaction (see Sotiriou v Billis, 11 AD3d 672 [2004]).

Finally, the Civil Court properly denied defendant's recusal motion. We note that absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of recusal and his or her decision in that regard will not be lightly overturned (see People v Moreno, 70 NY2d 403, 405-406 [1987]; Matter of Khan v Dolly, 39 AD3d 649 [2007]; Matter of Lucille H., 39 AD3d 547 [2007]; Matter of Stampfler v Snow, 290 AD2d 595, 596 [2002]). We further note that defendant has failed to articulate a specific factual basis for recusal.

Accordingly, the judgment is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.