Joseph P. Day Realty Corp. v. Chera (308 A.D. 2d 148)- broker's complaint for commissions reinstated where questions of fact exist as to whether broker was the procuring cause of a commercial tenant and if there was an implied contract which arose from landlord's acceptance of the benefits of broker's services; broker must plead and prove a contract of employment, express or implied, and in the absence of an express contract, an implied contract may be established in some cases by the mere acceptance of the labors of the broker; broker
failed to establish that it was a third party beneficiary of
lease agreement between landlord and tenant where provisions in
lease merely provided for indemnification between the parties and did not expressly set forth that one party would be obligated to pay the broker's commission; indemnification provisions in the
lease agreement do provide evidence of implied contract of employment with landlord where landlord agreed to indemnify tenant against brokerage commission claims from all brokers including plaintiff and where, to the contrary, tenant's reciprocal indemnification excluded plaintiff; triable issues of fact exist as to whether broker was the procuring cause where broker introduced the parties, showed the space to tenant's representatives, was involved in weekly
negotiations with the parties over the
lease terms, conveyed offers on behalf of tenant to landlord and participated in the meeting with the landlord and tenant at which the
lease terms were finalized