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